Relieved: Plaintiff’s Counsel Permitted to Withdraw From Potentially Fraudulent TCPA Suit

Remember that time consumer-rights lawyer Yitzach Zelman told the Unprecedented podcast he had never seen a bogus TCPA case? He may be singing a different tune now.

Zelman was lead counsel for a Plaintiff that fled a TCPA suit against Slack—yes that Slack—contending that the text-for-work app manufacturer was responsible for nearly 1,600 unsolicited text messages sent to his phone. As we reported earlier, Slack smelled a set up and demanded to review the data on the Plaintiff’s phone right out of the gate. It then counter-sued the Plaintiff contending that he had fraudulently manufactured his lawsuit and then sought Rule 11 sanctions when the Plaintiff denied charging allegations in the counter-claim. All of this lead Zelman to seek to withdraw as counsel, which the court originally denied out of concern, essentially, that the Plaintiff didn’t understand just how much trouble he might be in.

Well last Wednesday Zelman obtained his withdrawal from the suit, and over his client’s objection to boot.   In D’Ottavio v. Slack Techs., 1:18-cv-09082-NLH-AMD, 2019 U.S. Dist. LEXIS 111301 (D. N.J. July 3, 2019) the Court permitted Zelman to withdraw as counsel, noting that Plaintiff had failed to meaningfully communicate with his counsel for months. As the Court relays the facts, Zelman’s office had dutifully relayed the Court’s previous order respecting the status of the case and his lawyer’s effort to withdraw. Plaintiff was not initially responsive, but “after over 20 attempts to communicate with Plaintiff over the course of several months to no avail” Plaintiff responded stating that he did not consent to his lawyer’s withdrawal but understood the nature of the counter suit. Finding that the Plaintiff’s refusal to communicate with his counsel and the Court “presents an untenable position for the parties and the Court and frustrates, rather than promotes, the orderly adjudication of this matter,” the Court granted Zelman’s request to withdraw as counsel.

After this latest order, D’Ottavio now finds himself lawyerless and facing both a complaint for damages related to his alleged invention of a massive TCPA lawsuit and a sanctions motion related to his (allegedly) false denials of charging allegations within Defendant’s counterclaim. In the meantime his complaint against Slack has been dismissed, with prejudice, and he has 20 days to appear in the case, with or without a lawyer. Undoubtedly this is not the way he expected things to go when he filed suit.

It remains to be seen whether the allegations against D’Ottavio have merit—to date the court has been very cautious not to pre-judge the facts Slack has presented—but if it turns out that D’Ottavio did act fraudulently in bringing his TCPA suit we can expect the Court to act aggressively to deter this sort of conduct now and in the future. We’ll keep an eye on this one.

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