I always find it interesting when a TCPA defendant tries to raise a consent issue at the pleadings stage.

I mean I have reported on this about a dozen times, it never goes well. The court is limited to the factual allegations of the complaint on a motion to dismiss–so consent records can’t come in unless the Plaintiff is dumb enough to plead themselves out of a claim.

On a jurisdictional motion–such as a standing challenge–you can raise evidence outside of the complaint but evidence of consent is plainly a merits issue. So presenting evidence of consent only proves standing exists.

In short, there’s just no effective way to raise consent at the pleadings stage. But that doesn’t stop defendants from trying–and perhaps understandably.

For instance in Cabral v. Penske Truck, 2024 WL 1916701 (M.D. Pa May 1, 2024) Penske argued the Plaintiff had consented to the calls at issue in seeking to dismiss the claim for lack of standing. The Court denied the motion after entertaining the argument to is logical conclusion: “whether Mr. Cabral gave Penske consent for the communication goes directly to the merits of Mr. Cabral’s claims.” Pretty simple.

Noticeably, Penske seems like it might be in some trouble here. The claim is that Plaintiff provided his number and checked an authorization box of some kind but Plaintiff argues the form does not comply with TCPA requirements. Plaintiff didn’t even deny providing his number but is claiming the consent was insufficient as a matter of law– and that should make Penske plenty nervous. This is especially true as consent looks to be a classwide issue here.

So what should TCPA defendants do if they are sued despite having a valid consent form?

1. Consider a Rule 11 motion. Service of the motion will start a 21 day clock after which you can recover fees and costs as a sanction when you eventually prevail on consent issue–likely at MSJ, or even at trial. This shifts the risk of the suit to the opponent, even if an eventual payday is unlikely.
2. In the third-party lead context you can also countersue for fraud. This has the added benefit of serving as a class-action killer in many instances.
3. But don’t just file a motion to dismiss alleging consent. No chance of winning that.