Suing the TCPA Plaintiff Back: When Counterclaims Work or Backfire

A company sued under the Telephone Consumer Protection Act can counterclaim against the person who sued it, and sometimes it pays. One federal court awarded Slack fees and costs totaling $160,602.37 on a contract counterclaim against a plaintiff deemed to have admitted sending himself its download link 1,590 times. Most fare worse. Debt claims often get dismissed for lack of jurisdiction, and California treats claims about the lawsuit itself as protected petitioning. My view is that the best ones target pre-suit conduct.

What can a business countersue a TCPA plaintiff for?

Three theories come up most often: fraud in how the plaintiff gave consent, breach of a contract or terms of service, and abuse of process. Creditors add a fourth, a claim for the unpaid balance on the account that prompted the calls.

The label matters less than the target. A counterclaim aimed at what the plaintiff did before the lawsuit, such as submitting a lead form under a fake name, breaking a platform’s terms, or defaulting on a loan, is an ordinary claim that rises or falls on its evidence. A counterclaim aimed at the lawsuit itself, or at the demand letter that came before it, runs into the litigation privilege and, in California, the anti-SLAPP statute. I treat that second group as off the table unless something unusual is going on.

When does a fake-consent fraud counterclaim hold up?

When the evidence tying the plaintiff to the sign-up can survive discovery. Damages are the harder part.

Human v. Fisher Investments, in the Eastern District of Missouri, shows how one gets past the pleadings. Fisher’s fraud counterclaim alleged that the plaintiff “or someone acting on his behalf submitted an online form consenting to the calls at issue for the purpose of manufacturing a TCPA lawsuit.” The court rejected the plaintiff’s motion to dismiss it in an earlier, unexplained ruling, which its March 31, 2026 order describes as having “summarily denied Human’s meritless Motion to Dismiss Fisher’s counterclaim.” The proof came later, in discovery. A forensic exam of the plaintiff’s phone found texts addressed to at least a dozen different names, and the court wrote that “this finding fits perfectly with Fisher’s theory.” The March 31 order dismissed the plaintiff’s TCPA case as a sanction after finding he threw out his desktop computer less than 48 hours before a court-ordered device inspection, and it struck his answer to the counterclaim. Fisher’s damages on the counterclaim were still undecided.

Fraud has a damages problem, though. In D’Ottavio v. Slack Technologies, the court accepted that the plaintiff misrepresented his interest in Slack’s app and still declined to enter default judgment on the fraud counterclaim. It wrote: “As ironic as it may seem given Plaintiff’s intentionally deceptive scheme, Defendant’s failure to establish damages outside of contract-based attorney’s fees dooms its fraud claim.” The court also held the fraud claim, as proven, was barred by the economic loss doctrine. If the only harm you can point to is the lawsuit, a fraud counterclaim is weaker than it looks.

Can our terms of service support a breach-of-contract counterclaim?

It can. The one money award I found for a company on a counterclaim against a TCPA plaintiff came on this theory, because a fee clause supplied the damages fraud couldn’t.

In the Slack case, the Acceptable Use Policy barred users from “impersonat[ing] any person or entity,” and the court held the plaintiff broke it by sending himself the links and then attributing them to Slack. Part of that breach was the complaint’s own claim that Slack sent the texts, and the injury the court found was the cost of the litigation. In California, that piece of the theory could draw an anti-SLAPP motion. Slack’s terms also provided that “the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.” That clause is how the $160,602.37 award happened. The plaintiff had stopped taking part in the case, so the judgment came by default, not after a contested trial.

A fee clause cuts both ways in California. Under Civil Code § 1717, when a contract awards fees to one side, “the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees.” Lose the contract counterclaim and the plaintiff may collect fees under your own terms.

What happens to a counterclaim over the loan or unpaid balance?

Courts split, and the split partly tracks the test each circuit uses.

In Ammons v. Ally Financial, a Tennessee federal court dismissed a lender’s counterclaim alleging that the borrower falsely represented her ability and willingness to repay a car loan. Applying the Sixth Circuit’s “common nucleus of operative fact” test, the court found it lacked supplemental jurisdiction, concluding that “Ally’s Counterclaim on the car loan has a truly tangential relationship to Ammons’s TCPA action,” and said it would have declined jurisdiction anyway on policy grounds.

A federal court in San Diego went the other way in Horton v. Cavalry Portfolio Services. Applying the Ninth Circuit’s “logical relationship test,” it gave a debt buyer leave to add a breach-of-contract counterclaim, holding it compulsory because the unpaid debt and the collection calls “clearly overlap significantly.” The court left the plaintiff’s timeliness objection for later. Horton later settled as a class action, and the final approval order approved “the plan of distribution for the Debt Relief Fund” along with a cash fund. My read is that a debt is usually worth more at the settlement table, as debt relief, than as a counterclaim.

Why do abuse-of-process counterclaims rarely work?

Because suing someone, even for a bad reason, isn’t abuse of process in California.

The California Supreme Court held in Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma that “the mere filing or maintenance of a lawsuit” for an improper purpose “is not a proper basis for an abuse of process action.” The litigation privilege in Civil Code § 47(b) closes most of the remaining room. In Silberg v. Anderson, the court noted that the privilege, then numbered section 47(2), “has been held to immunize defendants from tort liability based on theories of abuse of process.”

Malicious prosecution, the tort built for baseless suits, can’t be brought as a cross-complaint in California, because it requires that the earlier case end in your favor first. In Babb v. Superior Court, the court concluded that “precedent, principle, practicality and policy forbid such a cross-complaint.” I haven’t found a reported decision letting an abuse-of-process counterclaim proceed against a TCPA plaintiff in California, and I wouldn’t file one.

How can California’s anti-SLAPP statute turn a counterclaim into a fee award?

By letting the TCPA plaintiff move to strike any counterclaim that arises from the act of suing, and by awarding fees if that motion wins.

Code of Civil Procedure § 425.16 covers statements made in or in connection with a judicial proceeding, and it expressly applies to cross-complaints. If the motion succeeds, “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” Here, the TCPA plaintiff is the defendant on your counterclaim, so the fees run toward the plaintiff. In state court, the motion also stays discovery unless the court allows specific discovery for good cause, and the ruling can be appealed right away.

Calling the claim breach of contract doesn’t avoid this. In Navellier v. Sletten, the claim was that the defendant breached a release by filing counterclaims, and the court held that “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability.” The court later sharpened the test in Park v. Board of Trustees of the California State University: a claim is subject to the statute only if “the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

That’s why I’d build a fraud counterclaim around the sign-up, not the lawsuit. A fake lead form submitted months before suit isn’t petitioning. A counterclaim whose only injury is being sued invites the motion.

Does the anti-SLAPP statute reach a counterclaim in federal court?

In the Ninth Circuit, it can, for counterclaims under state law.

The Ninth Circuit has applied the statute in federal court since United States ex rel. Newsham v. Lockheed Missiles & Space Co. in 1999. Under Planned Parenthood Federation of America v. Center for Medical Progress, a motion attacking only the pleading is judged like a Rule 12(b)(6) motion, while one attacking the facts is treated like summary judgment, with discovery allowed.

The en banc court changed the timing in Gopher Media v. Melone, decided October 9, 2025, a case where the motion targeted a countercomplaint. It held that “a district court’s denial of a motion to strike under the California anti-SLAPP statute does not satisfy the requirements for an interlocutory appeal under the collateral order doctrine.” The majority assumed the statute still applies in federal court, and four judges would have held it doesn’t. For a business, that means a denied motion no longer freezes the case for an appeal, but a granted one still carries fees. I’d plan for the motion in any California case, state or federal.

Counterclaim theories at a glance

How does a counterclaim complicate a class settlement?

It gives the named plaintiff a personal stake the class doesn’t share.

A court approving a class settlement must consider whether “the proposal treats class members equitably relative to each other,” and the parties “must file a statement identifying any agreement made in connection with the proposal,” under Federal Rule of Civil Procedure 23(e). Dropping a counterclaim against the named plaintiff is a benefit only that person receives, so expect the court to want it disclosed and justified. A live counterclaim can also support the argument that the named plaintiff faces unique defenses and isn’t typical of the class, a point covered in the earlier post on serial TCPA plaintiffs.

My advice is to decide early whether a counterclaim is a litigation weapon or a settlement chip. One that appears late and vanishes in the settlement looks like a side deal.

When is a counterclaim worth filing?

I’d file one when three things line up: documentary proof of how the consent was created (IP addresses, form timestamps, device data), a harm or fee clause that doesn’t depend on the lawsuit, and a theory aimed at pre-suit conduct. D’Ottavio, the one money win, didn’t fully meet the last test, and it came by default in New Jersey, outside the anti-SLAPP statute’s reach. Without all three, I think the same facts usually do more work as a consent defense, a standing or class-certification argument, or a sanctions motion. Human v. Fisher shows the last route can end a case outright.

Before you file a counterclaim

1. Put a litigation hold on call and text logs, platform data, and consent records, including the IP address, time stamp, and form version behind each sign-up.
2. Pull the opt-out and internal do-not-call history for the plaintiff’s numbers, with dates.
3. Pull the National Do Not Call Registry scrub records and the version dates used.
4. Collect vendor and lead-source contracts and the terms of service the plaintiff accepted, along with call scripts and recordings.
5. Talk to a lawyer before answering the demand letter, contacting the plaintiff, threatening a counterclaim, or offering to settle.

For claims involving disputed consent and plaintiff conduct, the firm’s California TCPA defense page sets out what the defense looks at first.

Questions businesses ask about TCPA counterclaims

Can we counterclaim over the plaintiff’s demand letter?

Usually not in California. The California Supreme Court treats prelitigation communications as within the anti-SLAPP statute, so a claim built on the letter invites the motion. Its exception in Flatley v. Mauro applies only where the defendant concedes, or the evidence conclusively establishes, that the demand was illegal as a matter of law, as with extortion. The court added that “rude, aggressive, or even belligerent prelitigation negotiations” aren’t necessarily extortion.

Will a counterclaim for the unpaid balance offset TCPA damages?

Maybe, but don’t count on getting it into the same case. Some federal courts dismiss loan-related counterclaims for lack of supplemental jurisdiction, as in Ammons. Others treat them as compulsory, as in Horton. Even where one stays, I think the debt can be worth more as a settlement term, like the debt relief fund in Horton’s class settlement, than as a separate judgment.

Does an anti-SLAPP motion stop our counterclaim in federal court?

It can strike a state-law counterclaim that arises from the act of suing, and a winning motion carries a fee award. Since Gopher Media, though, a denial by a federal judge in the Ninth Circuit can’t be appealed right away, so a denied motion doesn’t freeze the case. A motion that attacks the facts must be handled like summary judgment, with discovery.

Is it worth suing a plaintiff who manufactured the claim?

Sometimes. When the sign-up evidence is strong and the terms include a fee clause, a counterclaim can recover real money, as in D’Ottavio. When the proof is thin, the same facts are usually safer as defenses. A sanctions motion is another route, but it carries its own risk: under Federal Rule of Civil Procedure 11(c)(2), the court may award the prevailing party its fees for the motion.

If your company is weighing a counterclaim

If a TCPA plaintiff’s consent looks manufactured, the sign-up records and the theory you choose will decide whether a counterclaim helps or costs you fees. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims brought by plaintiffs whose consent records are in dispute. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The California statutes are Code of Civil Procedure § 425.16, Civil Code § 47, and Civil Code § 1717. The federal class-settlement rule is Federal Rule of Civil Procedure 23, and the sanctions rule is Federal Rule of Civil Procedure 11.

The court decisions are Human v. Fisher Investments, Inc., No. 4:24-cv-01177 (E.D. Mo. Mar. 31, 2026); D’Ottavio v. Slack Technologies, No. 1:18-cv-09082 (D.N.J. Oct. 26, 2022), and its fee order (D.N.J. Dec. 27, 2022); Ammons v. Ally Financial, Inc., 305 F. Supp. 3d 818 (M.D. Tenn. 2018); Horton v. Cavalry Portfolio Services, LLC, 301 F.R.D. 547 (S.D. Cal. 2014) (reported as Horton v. Calvary Portfolio Services), and its final approval order (S.D. Cal. Oct. 13, 2020); Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157 (1986); Silberg v. Anderson, 50 Cal. 3d 205 (1990); Babb v. Superior Court, 3 Cal. 3d 841 (1971); Navellier v. Sletten, 29 Cal. 4th 82 (2002); Park v. Board of Trustees of the California State University, 2 Cal. 5th 1057 (2017); Flatley v. Mauro, 39 Cal. 4th 299 (2006); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999); Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 890 F.3d 828 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018); and Gopher Media LLC v. Melone, No. 24-2626 (9th Cir. Oct. 9, 2025) (en banc).

This post is general information about the Telephone Consumer Protection Act and related laws as of April 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.