In Barton v. Delfgauw, No. 3:21-cv-05610-JRC, 2023 U.S. Dist. LEXIS 21804, at *11-14 (W.D. Wash. Feb. 7, 2023), Judge Creatura allowed a TCPA claim to proceed for standing purposes despite a defendant’s arguments that the claims were manufactured and that the Plaintiff suffered no invasion of privacy.
Defendants also argue that plaintiff lacks Article III standing to bring this TCPA action. See Dkt. 247 at 18-20. To establish standing, a plaintiff must have suffered an (1) “injury in fact,” (2) that is “fairly traceable” to a defendant’s challenged conduct, and (3) that is “likely [*12] to be redressed” by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 589-90 (1992). The Ninth Circuit held that “[a] plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.'” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 342 (2016)) (emphasis in original). Defendants argue that plaintiff has not been injured because he has conducted himself in a manner inconsistent with the TCPA’s purpose. See Dkt. 247 at 19-20 (arguing that plaintiff’s conduct does not show that he had an actual expectation of privacy). Although not explicitly framed as such, defendants appear to argue that plaintiff does not fall within the “zone of interests” protected by the TCPA. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). Indeed, certain courts have found that plaintiffs lack statutory standing under the TCPA when they seek to receive or attract solicitations to bring TCPA claims. For example, a plaintiff was found to lack statutory standing because she purchased at least 35 cell phones and cell phone numbers for the express purpose of filing TCPA suits “as a business.” Stoops v. Wells Fargo Bank, N.A. 197 F. Supp. 3d 782 (W.D. Pa. 2016). Another plaintiff was found to not have standing because he “kept repurchasing pre-paid phone minutes, apparently in order to keep receiving unwanted calls” on a phone the plaintiff claimed [*13] to have purchased for his father. Garcia v. Credit One Bank, N.A., No. 218CV191JCMEJY, 2020 WL 4431679, at *1, 3 (D. Nev. July 31, 2020). However, the above cases are the exception. See Perrong v. Victory Phones LLC, Case No. 20-5317, 2021 WL 3007258, at *6, n.5 (E.D. Penn. July 15, 2021) (noting that Stoops and Garcia are “the narrow exception to TCPA statutory standing”). “Courts have declined to find TCPA plaintiffs lack standing where the phone number [at issue] was not procured for the express purpose of receiving calls on which to base future TCPA litigation.” Id. at 5 (collecting cases). In a recent decision from the Northern District of California, the court held that the plaintiff’s status as a “professional TCPA plaintiff” did not strip her of standing because there was “no evidence that [the plaintiff] ‘seeks to receive’ or ‘attract’ telemarketing calls, or that any of her other TCPA actions are frivolous.” Trim v. Mayvenn, Inc., No. 20-CV-03917-MMC, 2022 WL 1016663, at *3 (N.D. Cal. Apr. 5, 2022). Here, defendants submit evidence that plaintiff has used at least five different numbers in plaintiff’s numerous TCPA lawsuits and that he is involved with TCPA University, which suggests he is in the business of filing TCPA lawsuits like the plaintiff in Stoops. See Dkt. 248-6 at 7. Defendants have also submitted evidence that, unlike the plaintiff in Trim, plaintiff has been found to have manufactured frivolous TCPA claims. See Dkt. 247 at 8 (citing Cause No. 21-5372-BHS). However, [*14] the Court declines to grant summary judgment on this issue because plaintiff claims that he bought the phone number at issue for his son to use, not for TCPA litigation, and the Court must view evidence in the light most favorable to the nonmoving party. See Dkt. 257 at 18-19. Whether plaintiff’s claims regarding the phone number’s purpose are credible will have to be determined at trial. Accordingly, defendants’ motion for summary judgment on the issue of plaintiff’s standing is denied.