Every once in a while its good to check in and remind everyone on the state of affairs when it comes to repeat litigators.
There’s a big push to avoid calling people who obviously don’t want to be called. Yet despite industry’s efforts to avoid them, somehow their numbers just keep getting submitted onto websites.
Hmm… I wonder how that’s happening.
In any event, callers are often frustrated when they are sued by a repeat litigator and try to argue to the court that they lack standing to sue. But–as I’ve explained to folks over and over again–it is not that simple.
Stated simply: Callers that move to dismiss a complaint on the grounds that a litigator has filed previous TCPA suits are just wasting their money. And lawyers that advise pursuing such a course should know better.
But even at the MSJ phase it is simply insufficient to demonstrate that a plaintiff might have a profit motive in bringing a suit.
Rather, to get a manufactured lawsuit thrown out of court you have to demonstrate–as my team did in the famous Stoops case–that the Plaintiff was taking steps to affirmatively attract the calls.
So, unfortunately, the recent ruling in Trim v. Mayvenn, Inc., Case No. 20-cv-03917-MMC, 2022 U.S. Dist. LEXIS 63222 (N.D. Cal. April 5, 2022) actually gets it right.
There the defendant moved for summary judgment because the plaintiff had filed 12 other previous suits and basically filed TCPA suits to make a living. But the Court shrugged:
Mayvenn contends Trim falls outside the TCPA’s zone of interests because she is a [p]rofessional TCPA plaintiff” who files TCPA actions “as a means to generate revenue.” In support of such argument, Mayvenn has identified twelve other TCPA actions filed by Trim within the past four years and submitted evidence that Trim, at a deposition, did not
recollect the details or status of some of those lawsuits. Although some district courts have found that, under certain circumstances, the TCPA may not encompass the interests of plaintiffs who file TCPA actions “as a business…” the Ninth Circuit has stated that “the term ‘professional,’ as in ‘professional plaintiff,’ is not a ‘dirty word’ and should not itself undermine one’s ability to seek redress for injuries suffered.” Here, Mayvenn has submitted no evidence that Trim “seeks to receive” or “attract” telemarketing calls, or that any of her
other TCPA actions are frivolous.
Hopefully everyone sees the difference here. Yes, it can be extremely frustrating to be sued by someone who does it for a living but don’t expect to just lob the plaintiff’s professional litigant status at the court and walk away with a win. More is needed.
Notably the Trim court was also unmoved by the fact that the plaintiff never texted “stop” to stop texts:
Mayvenn further contends Trim’s failure to “complain” or “respond with a ‘STOP’ message” upon receiving the first text from Mayvenn shows that she “took steps to allow the continuance of the injury while building a record to facilitate a later claim.” Such argument, however, “misstates the injury required to bring a TCPA claim and assumes a failure to mitigate statutory damages where no such duty exist[s].”
I’m not so sure about this one. An intentional decision not to ask for calls to “stop” is, in fact, an affirmative step being made to attract calls. So an argument that a plaintiff lacks standing to pursue claims for calls or texts made after they knew they could have simply asked for calls to stop seems perfectly valid to me. But not according to the Trim court.
Keep these standing principles in mind anytime you’re squaring off against a repeat litigator. Or just avoid calling them in the first place…