I’ve said it before and I’ll say it again, TCPA class action defense is not for faint of heart, or the green of horn.
The TCPA is an extremely complex area of law–which is why this blog is so wildly popular– and TCPA class action defense might be the single most difficult and complicated type of litigation on the planet. So in an environment when even talented and knowledgeable lawyers can make costly mistakes– but not me, of course–knowing when you’re in over your head is critical for attorneys making a foray into TCPA defense. (I cannot tell you how many times my team has been asked to take over a case when it is already “too late.”)
While lawyers may be forgiven for making small errors in this complex environment–again almost nobody is perfect– some mistakes are just too costly to forgive and forget and that is, allegedly, what happened in a recent TCPA defense involving the infamous James E. Shelton.
In a new complaint filed yesterday and obtained by TCPAWorld.com, the Plaintiffs (the defendants in the underlying suit) sue their attorney Joshua Thomas for malpractice alleging that he fell below the standard of care in defending the suit by Shelton resulting in their business being shut down by Shelton:
How did we get here?
Well, the lawyer’s (alleged) errors here are pretty immense and generally relate to a failure to timely communicate with his clients–which is an absolutely deadly flaw in all forms of litigation, and particularly with respect to TCPA litigation.
As the complaint–available here FCS Complaint–tells it, Counsel Thomas failed to advise his clients of discovery deadlines and an MSJ filing, resulting in an improper defense being waged. This was altogether improper–in the Plaintiffs’ view–because the case should have been easily defended from the outset:
But Shelton’s MSJ was never responded to and Thomas–allegedly–did not even try to contact his clients to mount an effective response leading to the Court entering judgment in favor of Shelton on the TCPA claims in the complaint.
Even after judgment was entered, however, the Complaint alleges that Counsel Thomas barely spoke to his clients for month and did not inform them judgment had been entered against them for nearly 8 months.
In the meantime Shelton had served post-judgment discovery demands, which went unresponded to because Thomas (allegedly) never provided them to his client until long after they were due and the Court had ordered a response.
After several hearings before the Court related to discovery and an ancillary filing, things (allegedly) became very bleak with the Court finding that Thomas had made false statements to the Court and barring him from filing further cases:
Again the ultimate result of the judgment and Shelton’s apparently aggressive enforcement actions, was that the Plaintiffs business was (allegedly) shuttered:
This is interesting stuff. We’re going to keep a close eye on this one and let you know how it goes.
But the take away here is clear– lawyers defending TCPA suits need to take their duties to their clients seriously and mount an effective defense. Sitting on a problem, failing to report a bad order or ruling or–worse yet–actively hiding information from a client in the hopes that you can “fix” things is just going to get you into more trouble.
And for those considering TCPA defense counsel– be sure to look for a proven track record and deep expertise before you engage.
Your business may be at stake.