This one might be the weirdest case yet.
You know how these repeat TCPA litigators love to waste your time pretending to be interested in your product just to try to set up their lawsuit? Well, here’s a lesson in how you SHOULDN’T respond to it.
So, after a telemarketer figured out that the person he was calling was repeat TCPA litigant (and anti-robocall activist) Diana Mey—and not the sweet little ole lady interest in an alarm system she was pretending to be to set up the lawsuit—he proceeded to verbally abuse her by suggesting she had copulated with a dog the night before.
Yep. With a dog. Using really foul language. Pretty bad stuff.
Again–not the way to handle the situation folks.
Obviously the last person who would let comments like that go–and really no one should– is Diana Mey. She was 100% going to make this guy pay.
But there was a problem.
The caller had never clearly revealed who he worked for before launching on his tirade. So while she (allegedly) received a prerecorded unwanted marketing call to a number on the DNC list AND got roughed up a bit by the caller, she still had a huge problem in proving her case—she didn’t have direct evidence that the caller was an agent of the alarm product being sold on the call.
That’s where Phil Charvat came in.
Phil “you can call me a serial TCPA litigant but please not a professional plaintiff” Charvat just happened to have (allegedly) received the same prerecorded call from the same marketing company on the same day. He was, apparently, able to bypass suspicion a bit longer and got the agent he spoke with to admit they were, in fact, an agent of Monitronics, Intl. the company offering the alarm system for sale.
For reasons totally unrelated to setting up TCPA lawsuits—I am sure—Phil and Diana came to have a chat at some point and each, apparently, learned of the other’s encounter with Monitronics. Relying on Phil’s rendition of his own call with Monitronics, Diana sued the company arguing that its agents must have been responsible for the foul-mouthed encounter she had with the anonymous alarm salesman following the same prerecorded call Phil had received.
Monitronics responded to the suit—as you’d expect—by arguing: i) it wasn’t me; and ii) even if it was me, we definitely didn’t authorize our agents to accuse Diana of laying with canines.
More specifically, Monitronics argued that Charvat’s declaration relied on hearsay—no one knows the rules of evidence anymore it seems—and claimed it cannot be held responsible for deplorable misdeeds by agents it retains merely to annoy people (allegedly) but not to outright abuse them.
The Court was unmoved on both counts. First, the evidence of the Monitronics agent’s statements were not inadmissible because they are not submitted for the proof of the matter but merely to prove agency/control. (That’s probably too fine a line of distinction for most folks, but the rule of 801(d)(2) works just fine as well.) So Mey’s case survives thanks to a declaration from Charvat—proving that there’s more than one way to “manufacture” a lawsuit folks.
As to Monitronics’ “harass but don’t abuse” defense, the Court found that the agent’s verbal tirade might have been done in an effort to intimidate Mey into not suing his employer. That is, the Court concluded agent might have been acting in a misguided effort to protect Monitronics by saying the most vile things possible to a woman he knew was practically certain to sue his employer for it.
Makes sense to me.
And there you have it folks. Monitronics is headed to trial in a case where its agent (allegedly) abused Mey, based upon a declaration from Charvat and the Court’s assumption that its agent was only trying to protect Monitronics in berating her.
The take aways here are pretty obvious. One—don’t call serial litigants. If you need tips on how to avoid doing so let me know.
Two—train your agents to NEVER abuse people. Yes, we know it can be EXTREMELY annoying when some goofball serial plaintiff feigns interest in your product and wastes your time in an effort to set up a lawsuit. Its not ok. But there are remedies. The right thing to do is—where appropriate—to sue or counterclaim for fraud or or to seek sanctions or other appropriate theory of recovery.
But it is NEVER to mouth off to and/or demean the serial litigant. It never goes well. And even if he/she doesn’t catch you– another member of the wolf pack might.
Stay cool. Stay in business.
Another priceless tip from the Czar.