Telephone and Texting Compliance News: Litigation Update — October 2025

Fraud Counterclaim Survives Summary Judgment

In 2024, plaintiff Daniel Human sued Fisher Investments, alleging violations of the Telephone Consumer Protection Act, and bringing the case on behalf of a putative class. The defendant removed the case to federal court and responded with an answer — all standard fare. Things got interesting after the plaintiff amended the complaint and the defendant responded with a counterclaim for fraud, alleging that the plaintiff or someone acting on his behalf submitted an online form to manufacture the case.[1]

Earlier this year, the plaintiff moved to have the counterclaim dismissed, which the court denied in a succinct, one-page order.[2] The counterclaim then moved into discovery, where testimony came to light of a computer disposed of before a device inspection.[3] With that as the backdrop, the plaintiff took another stab at disposing of the fraud counterclaim, this time by moving for summary judgment, which the court denied for a variety of reasons.

As a threshold issue, the court explained that due to prior conduct in the litigation, the court had already decided to strike Human’s pleadings, including his answer. “Thus, the issue of Human’s liability is no longer in dispute.”[4]

Even if a question remained as to liability, however, the record supported the fraud counterclaim proceeding to a jury:

Human admitted to disposing of a computer — the key piece of evidence in the matter — hours before a forensic exam was set to go forward. This egregious misconduct would entitle Fisher to an adverse inference. . . . At his deposition, Human invoked his Fifth Amendment right against self-incrimination dozens of times when questioned about the fraud Fisher alleges. . . . That too warrants an adverse inference here.[5]

Findings following an examination of the plaintiff’s cell phone further supported the claim moving forward:

The forensic review of Human’s cellular phone revealed that it received text messages addressed to at least a dozen different names and contained “hardly any text messages addressed to” Human. . . . An expert declared that, though he had “analyzed data from thousands of cell phones over the course of [his] career,” the expert had “never seen a phone like this one receiving communications addressed to more than a dozen different people.” . . . This perfectly fits Fisher’s allegation that Human, or someone acting at his request, provides his contact information, along with a fake name, to entities to solicit calls from them, which then appear to be unsolicited by Human himself.[6]

Likewise, the volume of the plaintiff’s prior filings supported denying summary judgment:

Even the sheer number of civil actions Human has filed under the Telephone Consumer Protection Act suggests fraud. . . . Human filed over sixty-five TCPA actions in a one-year period. . . . The idea that Human received unsolicited phone calls from so many legitimate entities in violation of the TCPA “taxes the credulity of the credulous.”[7]

Keep Human in Mind

Defendants often face TCPA litigation from repeat plaintiffs who allegedly receive mountains of unsolicited communications from various sources. Allegations like these, when viewed in the context of prior litigation, can be difficult to reconcile with common sense. If the allegations don’t sit well, Human is a reminder to aggressively go on the offensive in discovery, and consider counterclaims when appropriate.

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