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…
“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.”
WOW Really!!
Eric, I believe you’re overlooking one incredibly IMPORTANT detail here; not surprisingly – as it backs your frequent (if not overwhelming) narrative, that any/all clearly violated consumers deluged by the scourge known as illegal robocalls are clearly either manufacturing suits and/or just basic ner’ do wells out to do harm to innocent telemarketers (!!)
The simple fact is that by placing ones phone number on the National DNC Registry kinda, just maybe, in an obviously wishy-washy way just may indicate the desire to not get robocalls with out consent (do ya think these folks really exist??).
So you mean its DNC registrants legal responsibility to then tell the illegal robotexters to stop a second time!!?? They said it already via the DNC – DUH!!!!! At what point do you acknowledge that a defendant is a defendant for good reason!! I personally have replied stop many times (which is NOT my responsibility and yet they do NOT STOP regardless.
The obvious (yet, un-noted) simple solution that would have nullified this whole matter…..pause for dramatic effect….
SCRUB YOUR DAMN LISTS!!!!!
Credibility sinking a tad lower once again…you know and I acknowledge that your clear grasp of all things TCPA is beyond compare, Eric, I tip my hat to you sir. It’s why I’m here! Yet why tarnish your reputation and credibility with such disregard for all sides of a case/facts??
For what its worth – here’s an interesting tid-bit from the same case in question…
“For every 18 million robocalls, there’s only one TCPA lawsuit in federal court.
Compare Mike Snider, Robocalls Rang up a New High in 2019. Two or More Daily Is Average in Some States, USA Today (Jan. 15, 2020), https://www.usatoday.com/story/tech/2020/01/15/robocalls-americans-got-58-5-billion- 2019/4476018002/ (58.5 billion robocalls), with WebRecon, WebRecon Stats for Dec 2019 and Year in Review: How Did Your Favorite Statutes Fare?, https://webrecon.com/webrecon-stats- for-dec-2019-and-year-in-review-how-did-your-favorite-statutes-fare/ (last visited Mar. 25, 2020) (3,267 TCPA complaints).”
Just to be clear, nowhere does the Notice to Dismiss mention that the plaintiff “(manufactured) or otherwise consented to said text messages” In fact the biggest issue they raise is that the plaintiff seems to have neglected to provide phone company invoices that would indicate the month, day and YEAR the texts were received (since the iPhone screen grabs furnished only show month & date [and not the year]). Also an email from the national DNC registry would have negated the ‘alleged inclusion in the registry’ claim I presume by proving said inclusion was fact.
Note: Of course there was the pending Facebook ruling to be considered as well. But bottom line, Trim was on DNC,Trim did NOT manufacture consent, defendant did not claim consent was furnished, defendant violated 227(c) at a minimum (pending 227(b) /Facebook situation) END OF STORY OMG an actual guilty defendant, hard to believe, say it ain’t so 😉
“Further, Plaintiff fails to state a claim that the text messages she allegedly received were sent in violation of the National Do-Not-Call rules. (Id. ¶ 45.) Although Plaintiff alleges that her phone number has been on the National Do-Not-Call List since December 3, 2019, she does not the allege the specific dates she received the two text messages at issue, thereby failing to adequately plead that these messages were received after her phone number was placed on the do-not-call list. For these reasons, the Court should dismiss Plaintiff’s Complaint because Plaintiff fails to allege injury-in-fact sufficient to establish Article III standing and fails to state a claim for any violations of the Telephone Consumer Protection Act’s (“TCPA”) do-not-call provisions.”
Yes, I realize the devil is in the details and this seems to be on Paronich and team dropping the ball, but when the best they got, is to the effect of, evidence doesn’t indicate the year (which would prove the texts came after DNC registration) I mean come on…love this stuff – you ‘da man, Eric!