In Alvarado v. Credit Protection Association, L.P., 2015 WL 859109 (M.D.Fla. 2015), Judge Covington rejected the argument made by a TCPA defendant that a “Notice of Representation” from Plaintiff’s counsel was inadmissible as a confidential settlement communication because the letter was relevant to cease-and-desist under the FDCPA and revocation of consent under the TCPA.

Although the September Letter contains language regarding the “possibility of resolving this matter prior to expending additional time or money in prosecuting or defending this suit,” Plaintiff is not offering the September Letter to prove Defendant’s liability for or the validity of the claims relevant to the September Letter. Rather, Plaintiff is offering the September Letter to prove that Defendant had knowledge that Plaintiff was represented by counsel, which gave rise to the additional FDCPA and FCCPA claims that are now part of the present action.  ¶  The Draft Complaint asserted that Defendant had violated the TCPA and FDCPA by failing to make required disclosures in its voicemail messages to Plaintiff and by calling Plaintiff with an automatic telephone dialing system or prerecorded voice without the prior consent of the Plaintiff. ( See Doc. # 40–2). The Complaint, however, asserts additional FDCPA and FCCPA claims based on Defendant’s alleged communication with Plaintiff after obtaining knowledge that Plaintiff was represented by counsel. These claims arose after the issuance of the September Letter, and are independent of the claims contained in the Draft Complaint. Because the September Letter is being offered for “another purpose”—Defendant’s knowledge that Plaintiff was represented by an attorney—it falls within section (b) of Rule 408, enumerating the exceptions to the Rule. ¶  The Court is mindful that the September Letter contains the language: “CONFIDENTIAL—FOR SETTLEMENT PURPOSES ONLY.” However, this Court finds that such language alone is insufficient to exclude the September Letter under Rule 408. “When confronted with a motion to strike based on inadmissibility, a court should consider whether there is any possibility that the pleading could form the basis for admissible evidence.” Agan v. Katzman & Korr, P.A., 328 F.Supp.2d 1363, 1369 (S.D.Fla.2004) (internal quotation omitted) (emphasis added). Even though the September Letter contains the referenced language, Plaintiff has not offered any statement made by Defendant during settlement negotiations against Defendant. Rather, Plaintiff “is only attempting to offer [his] own statement that he was represented by an attorney.” (Doc. # 40 at 6). Thus, the Court finds that the September Letter falls outside “the protections usually afforded to the products of settlement negotiations.” Agan, 328 F.Supp.2d at 1369. For the reasons set forth above, Defendant’s Motion is denied.