As TCPA litigation continues to rise and risk spikes it is more important now than ever before to WISELY choose counsel.

Choosing the wrong counsel– particularly incapable #biglaw outfits that thrash about and lose–can lead to absolutely massive exposure in these cases.

Heck, even the Wolf– Anthony Paronich– agrees. He had some VERY interesting things to say on the subject yesterday when we recorded Deserve to Win (Ep. 35)(our next week.) Check a couple of quick clips here:

The Wolf did not hold back…

But today’s case might be the clearest example yet of what happens when a defendant chooses inferior counsel to represent them. What a complete disaster.

In Germain v. Mario’s Air Conditioning and Heating, 2025 WL 2229885 (M.D. Florida Aug. 5, 2025) the court entered summary judgment IN FAVOR OF THE PLAINTIFF pre-certification!

This means the Plaintiff has already established the Defendant is liable before the case has even been certified.

Now this is a massive massive problem for the defendant for a number of reasons.

Let’s start with the substance.

As Steven reported previously, the case arises from text messages reading:

Mario’s AC is reminding you to consider flipping off the breaker to your AC
unit during a hurricane. We are here for you. 727-306-0182 STOP to end.

and

“Did Hurricane Ian damage your AC? Mario’s AC is running 24/7 emergency service and safety inspections We’re here for you! Call 727-591-0822 STOP to end.”

Now to my eye neither of these is a solicitation– rather these are EMERGENCY PURPOSE MESSAGES.

At the time the first message was sent a major hurricane was bearing down on the area. And the second message was sent following a hurricane hitting.

Without question air conditioning is a critical– indeed life saving at time– service in the sticky heat of a Florida September is essential, particularly for the elderly. Failing to flip the breaker on the AC ahead of a hurricane can lead to massive unnecessary damage to the AC unit and other potential safety concerns.

Emergency purpose messages are categorically exempted from the TCPA so any effort to defend a suit arising out of these messages should have started with this argument.

But in Germain the defendant missed this issue altogether and argued the first message did not contain any marketing material and so it wasn’t a solicitation. (It actually conceded for some reason that the second message WAS solicitation. Eesh.)

As Steven previously pointed out the Court disagreed and found the inclusion of the phrase “We are here for you” along with the phone number was enough to reflect a marketing purpose. Remember, however, the content of the message is not dispositive– it is the context and intent that matters.

Yet the Defendant seemingly did not create a record on intent– i.e. was the message sent to drum up business or was it sent to literally protect consumers from health and safety risks?

We don’t know because no evidence to that effect was apparently submitted. As a result the court ruled in favor of the plaintiff based solely on the CONTENT of the message:

Upon consideration of the text message, the Court finds that the text message at issue is a telephone solicitation that is actionable under the TCPA. Messages may have more than one purpose – even if a message is informational, it may also constitute telemarketing “where it ultimately leads to the promotion of goods or services, even if the text may be otherwise benign.” Contrary to Defendants’ assertions, the text message is not purely informational and does not “merely provide[ ] safety information and advice to the plaintiff.” Had the message stopped after the first sentence, perhaps that would be the case. But the inclusion of “We are here for you,” along with a telephone number, serves as a pretext to commercial activity and encourages the ultimate purchase or sale of services by Mario’s AC, making the text message undisputably a solicitation. What was sent was not simply information – it was information with a “commercial nexus” to the sender’s “business.”

My goodness.

Should never have happened.

Again it is impossible to determine whether the message is a solicitation based solely on its language. Evidence of intent is required to make that finding. Yet, here we are. A complete loss substantively.

But the procedural missteps here are even worse.

With the critical substantive issue in the case decided against the Plaintiff class members now have a massive leg up. But the case has not even been certified yet. When it is class members will have the ability to opt out and not be included in the result– but why would they ever do that now? They know they’ve already won!

Defendants are supposed to be protected from this unfair peek at the cards by absent class members. That’s why certification issues are supposed to be determined only AFTER certification is determined– a doctrine called “one way intervention” protection that the U.S. Supreme Court provided decades ago.

By waiving one-way intervention the defendant has just lost a MASSIVE COMMON SUBSTANTIVE ISSUE that impacts the entire class. This not only assures class members will leap into the class upon certification– it also creates a very high likelihood the class will be certified! Especially with a pro like Abbas on the other side of this one.

So this is essentially two catastrophic losses in one.

Absolutely insane mistake.

Pro class litigators will NEVER open their clients up to a substantive determination on a classwide issue at the summary judgment stage pre-certification. This is an absolute rookie mistake in my view. Just nuts.

Now in fairness this train wreck of a dumpster fire was not brought to you by #biglaw but by one of these regional firms down in Florida that likes to say they are TCPA experts. (Draw your own conclusions…) So I don’t want it suggested I blamed #biglaw for this one– turns out mid-size firms can completely screw up as well.

Take aways here:

1. Messages that are seemingly informational can be treated as marketing– particularly where you fail to provide evidence of intent to the contrary;
2. NEVER forget about emergency purposes exemption when messages are sent during a catastrophe– while the defense was narrowed by the FCC, case law is more forgiving and following McKesson the FCC’s handiwork is largely irrelevant;
3. NEVER raise substantive classwide issues prior to certification and ALWAYS raise one-way intervention as a defense to avoid giving Plaintiff a massive leg up on certification issues;
4. HIRE THE RIGHT COUNSEL.