TCPAWORLD AFTER DARK: Plaintiff Litigates for Years to Win $500.00 in a TCPA Class Action Against Two Defendants That Never Showed Up

Generally speaking failing to respond to a TCPA class action complaint is about the worst idea imaginable. But for a couple of alleged fax miscreants in Colorado, the strategy turned out pretty good.

Five Star Advertising, LLC and some guy named Johnny Lee, allegedly blasted a bunch of folks with faxes back in 2019. One company was outraged enough about the faxes to sue in a TCOA class action.

The defendants never showed up, which lead to the court certifying the case for purposes of injunctive relief. But since the Plaintiff never obtained the class data–the defendants never showed up remember?–the case could not be certified for damages purposes.

Following the certification ruling the plaintiff moved for a default judgment and an injunction. The court granted the motion–awarding Plaintiff $500.00 for the one fax it received. And although it awarded an injunction banning defendants from sending similar faxes in the future it denied plaintiff’s request for attorneys fees–the TCPA does not allow for an award of such fees.

In the end, therefore, defendants’ decision to simply not show up in court resulted in a judgment of a mere $500.00.

I’m not recommending this strategy. The Court could have done 1,000 different things here, and this outcome was probably the least likely. Failing to show up in court generally leads to BAD things happening.

Still, this is an interesting little tale.

Case is Stone v. Five Star Advertising, 2022 WL 4094067 (D. Colo. Sept. 7, 2022).


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