Aggressive, pre-answer motion practice is often warranted in TCPA cases, particularly in class actions. But as a defendant found out in the Western District of New York, it is critical to pay attention to unique burden of proof issues in TCPA cases, particularly when moving for summary judgment. See Forney v. Grand Island Chiropractic, P.C., No. 18-cv-616, 2019 U.S. Dist. LEXIS 195387 (WDNY Nov. 8, 2019).

The defendant in Forney allegedly sent multiple text messages to the plaintiff regarding chiropractic services, which it contended fell within the healthcare-related messages exception to the TCPA. As a reminder, the healthcare-related calls and messages exception contains a limited exemption for certain healthcare-related messages – but not all – from the TCPA’s prior written consent requirement. The exemption, however, contains several conditions, including the ability of a consumer to opt out.

The defendant moved for pre-discovery summary judgment, but apparently did not attach copies of all text messages and the records of the plaintiff providing consent to be called. The papers also apparently did not address whether the plaintiff ever opted out, as he alleged. The Magistrate Judge therefore recommended that the motion be denied and the case allowed to proceed to discovery, largely because the defendant did not meet his burden of showing consent or that the healthcare exemption applied.

The case thus serves as an important reminder for the burden of proof in TCPA cases. Most courts hold that the defendant, not the plaintiff, has the burden of proving either consent or an exception to the consent requirement. The defendant must therefore produce affirmative evidence of consent to shift the burden of proof to the plaintiff on a motion for summary judgment. Without affirmative evidence, the plaintiff does not have to produce any evidence on the issue to avoid summary judgment. That proof can be adduced in discovery, but it can also be in the form of a declaration and other evidence attached to the motion.