At the huge Troutman Amin, LLP Marketing/Advertising Law Conference (Law Conference of Champions) last week a very lovely attendee made an excellent observation: “All of the risk seems to be on one side of the equation, why are Plaintiffs never hit with penalties when they bring these suits and lose?”
Indeed the Plaintiffs rarely face any real penalties–although there are a few exceptions.
Among those was–emphasis on the past tense–the win by LeadPoint against Nathan Barton. LeadPoint had previously obtained an order awarding $40k in fees following a determination that Barton may have set up his lawsuit.
Barton–who was famously given the hero treatment by NPR in a Planet Money episode the Czar was invited to comment on–appealed and won some and lost some.
He actually lost the case– the appellate court found that the district court did not err in determining Barton lacked the sort of privacy rights the TCPA was designed to protect against. While that feels right, the ruling is actually pretty unsatisfying because there is no legal doctrine cited to support the dismissal. Is this an Article III thing? If so, how considering the Ninth Circuit’s crazy recent ruling in that Smosh case? Is this a prudential standing thing? If so, how can it be since the Ninth Circuit killed prudential standing in that Porch case? Is this a statutory standing thing? If so, how can it be since the statute gives a right of action to “any person”?
So… the world may never know. But what we do know–case dismissed.
But what we also know is Barton walked away with a very nice moral–and financial–victory. Specifically, the appellate Court determined the award of fees against Barton was not permissible:
The mere fact that Barton is a frequent TCPA litigant does not evince bad faith, and there is no other evidence to that effect―the conflicting positions on nuanced issues of federal jurisdiction in his motion to remand and First Amended Complaint appear to have been the product of a pro se plaintiff’s confusion, not a lack of good faith.
This is very confusing in light of the district court’s ruling directly to the contrary:
The number [Barton] gave was for a business phone, used to create, build, manufacture, collect evidence in support of… his TCPA claim. He freely admitted as much on his website. He wanted and intended to receive calls on his business phone, so that he could sue… The Court has little trouble concluding both that the claims based on the calls Barton invited were frivolous, and that they were intended to harass Leadpoint in the name of making telemarketers “compensate” him. The same is true of Barton’s motion to remand, and his attempt to leverage it.
I mean… that was the ruling. And the big Court does not explain how/why it was unfounded. It simply suggest there was “no evidence” of bad faith and does not address anything the district court relied upon in reaching the opposite conclusion.
What in the name of overworked appellate dockets?
So let this resonate as yet further evidence of the incredible unfairness of the American judicial system. At best a guy can bring a lawsuit without any standing to pursue the case–cost defendants tens of thousands– and walk away suffering no penalty. And, at worst, a guy can set up a frivolous lawsuit as a shakedown scam–which may or may not have happened depending what court you believe–and walk away with no penalty.
For his part, Barton is quite pleased with the ruling. He forwarded it to me earlier today along with a love note:
“I hope nothing you have said about me crossed into defamation. I’ll be reviewing.” He says.
Dear Mr. Barton: Let me know where the lower court got the facts wrong and I will be very happy to report on it. Or better yet–come on the podcast and tell the world yourself. Equal time, and all that.
Never a dull moment TCPAWorld. 🙂
Ruling is here: Leadpoint Appeals Court Reverse Attorney Fees 22-35130_Documents