Defendant Countersues Plaintiff for Common Law Fraud in 'Spurious' TCPA Lawsuit
Aragon Advertising responded forcefully Wednesday to plaintiff Nelson Estrada’s Sept. 12 Telephone Consumer Protection Act class action in which he alleged that Aragon inundated his cellphone with 37 “unauthorized and illegal” solicitation calls, to a number listed on the national…
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do not call registry since June 2008. Aragon maintains it’s not liable under the TCPA because all the calls it made to Estrada’s cellphone were with his “prior express consent,” said Aragon’s counterclaims (docket 4:23-cv-03407) in U.S. District Court for Southern Texas in Houston. Estrada “is a budding professional TCPA litigant who shops lawsuits around different area law firms,” said Aragon’s counterclaims. Estrada visited Aragon’s website in November 2022, and the contact information he provided included the name Sam Smith, but the phone number he gave “was unmistakably Estrada’s,” they said. “In other words, amidst the seemingly fake name of ‘Sam Smith,’ the essential information that Estrada needed to get his ‘unwanted calls’ -- his phone number -- was accurately provided,” they said. When Aragon did phone Estrada, he would “pretend to be interested in Aragon’s products and services, thereby driving up the call count that he would use to extract a higher settlement payout for his manufactured TCPA claim,” said the counterclaims. “Estrada knew that he opted in to receive phone calls, and that businesses like Aragon would rely on that TCPA-compliant opt-in to place phone calls to his number,” they said. “Instead of correcting that manufactured opt-in, Estrada intentionally failed to simply ask Aragon to stop the phone calls he was receiving in order to drive up his settlement demand,” they said. When the “extorted settlement” didn't materialize, “he filed suit falsely claiming that the phone calls were unsolicited in his broader campaign to collect money under false pretenses via his TCPA claims,” the counterclaims said. “Aragon has now been required to engage attorneys and incur costs associated with defending against Estrada’s spurious and fraudulently induced lawsuit,” they said. Aragon’s counterclaims accuse Estrada of engaging in common law fraud. It seeks an award of actual damages, exemplary damages, court costs, attorneys’ fees and “all other relief, at law and equity, to which Aragon may show itself entitled.”