A recent order from the U.S. District Court for the Western District of Washington in a long-running Telephone Consumer Protection Act (TCPA) case addressed the role of consent, stipulations, and the scope of liability in telemarketing litigation. The court granted in part and denied in part the parties’ cross-motions for summary judgment, resolving issues of liability while leaving damages and certain claims for trial.
Allegations
Plaintiff alleges that defendants sent unsolicited calls and text messages in violation of the TCPA and various Washington state telemarketing laws. The plaintiff’s number was listed on the National Do Not Call Registry, and the communications in question promoted goods and services from entities not covered by any consent the plaintiff may have provided.
Consent and Stipulations Drive Liability
A central issue was whether plaintiff consented to receive the communications. Defendants argued that the plaintiff opted in via certain websites, but the parties’ joint stipulations established that any consent given was limited to a specific list of partners, which did not include the defendants or the entities whose services were promoted. The court held that these stipulations were binding and dispositive, precluding the defendants from arguing consent as a defense.
The court rejected the defendants’ attempts to introduce new theories of consent or to rely on opt-ins from other websites, citing prior admissions and the law of the case doctrine. The court emphasized that parties are bound by their factual stipulations throughout the litigation.
Scope of Claims and Damages
The court limited the plaintiff’s recovery to the calls and texts specifically alleged in the operative complaint, declining to consider additional communications raised at the summary judgment stage. The court clarified that the use of an ATDS was not required for liability under the relevant TCPA provisions at issue.
State Law Claims
- Washington Telemarketing Registration: The court dismissed the plaintiff’s claim under Washington Revised Code § 19.158.150, finding no private right of action for failure to register as a telemarketer, and no causation between the alleged failure and the plaintiff’s injury.
- Failure to Identify: Claims under both federal and state law for failure to properly identify the caller remain for trial, as the defendants’ arguments were either inapplicable or dependent on the already-resolved issue of consent.
- Commercial Electronic Mail Act (CEMA): The court granted summary judgment for the plaintiff on claims under Washington’s CEMA, again relying on the defendants’ stipulations regarding lack of consent.
Barton v. Delfgauw, No. 3:21-CV-05610-DGE, 2025 WL 2402131 (W.D. Wash. Aug. 18, 2025).
