GIVE IT UP: Vivek Ramaswamy Ordered to Produce Information in TCPA Class Action Over Campaign Robocalls

So this smarmy guy Vivek Ramaswamy was trying to troll his way to the White House last autumn and was doing a half-decent job (although reports are that Trump has personally told Vivek he will not be his running mate.)

But he allegedly sent some unsolicited prerecorded calls to voters and a guy named Thomas Grant (who I assume is a Nikki backer) sued Vivek personally in a nationwide TCPA class action.

The allegations are that Vivek sent messages to a ton of people without consent and Grant seeks to represent a class of:

Pre-recorded No Consent Class: All persons in the United States who from four
years prior to the filing of this action through class certification (1) Defendant
Ramaswamy or his campaign called on their cellular telephone number (2) using an
artificial or pre-recorded voice

Smarmy indeed.

So Vivek apparently responded to the complaint by demanding that Plaintiff name his campaign instead of him personally. Plaintiff, for its part, demanded confirmation from Vivek that he had held onto dialer records.

Vivek apparently responded that the records were in the hands of a third party and he wouldn’t give up the name of the dialing company unless Plaintiff agreed to dismiss Vivek personally and name his campaign instead.

That didn’t go well.

In Grant v. Vivek Ramaswamy 2024 WL 1448044 (S.D. Oh. April 2, 2024) the Court ordered Vivek to give up the name of the dialing company he used so that Plaintiff could issue a subpoena for dialing records:

Defendant will not be prejudiced by the requested discovery. Defendant’s burden is light, as he is required only to name the dialer provider. And Defendant’s conduct demonstrates he knows the identity of the dialer provider. (See Doc. 6 at 2–3; Doc. 10-1 at 3). Indeed, when asked, Defendant never claimed not to know the dialer’s identity. Instead, he refused to identify the dialer or provide information about the preservation notices he purportedly sent. (Id.). Rather than cooperating with Plaintiff to avoid the Court’s intervention, Defendant attempted a quid pro quo. He tried to force Plaintiff to drop him as a defendant in exchange for the discovery. (Doc. 6 at 2; Doc. 10-1 at 3 (“However, I will represent to you that Vivek 2024, as we previously discussed, who is the proper party in this matter, did indeed engage with a vendor to act on behalf of the Campaign. In the event you correct the parties in this matter, the Campaign is ready and willing to disclose vendors and provide you with the representations you desire.”)). At this point, due to Defendant’s gamesmanship, Plaintiff may not be able to collect this data before it is destroyed without a court order and a subpoena.

So the court was annoyed Vivek’s lawyers were trying to extract a dismissal for data– never a smart play.

But it actually gets much worse for Vivek than it seems.

A subpeona to a third party seeking large scale dialing records is very commonly subject to being quashed or limited because the scope is excessive given the needs of the case. And once dialing records are produced the case is basically over– Plaintiff has everything he needs to certify a case in may instances. And this case appears to be no different.

But Vivek’s counsel fumbled their best chance at opposing the subpoena by front loading the issue at a poor procedural posture. So the Court has essentially already ruled the subpoena is valid in scope–which it probably wasn’t:

More still, the scope of the requested discovery is sufficiently narrow. Plaintiff seeks only to subpoena a dialer provider to obtain call transmission logs and the relevant data available for those logs. See, e.g., Strange v. Green & Red Co., No. 18-CIV-81382, 2018 WL 11458912, at *3 (S.D. Fl. Nov. 8, 2018) (finding an expedited discovery request narrowly tailored when it sought to discover limited information connected to certain telephone numbers). As such, the limited scope of Plaintiff’s request supports a finding of good cause.

Get it? Because Vivek’s lawyers fought the right fight in the wrong way he just lost a battle summarily that he probably could have won on a proper motion to quash. What a mess.

At bottom Vivik has to dish on the dialer and brace himself for a massive class certification effort once Plaintiff has the data set. Not good.

For the curious, the case is brought to you by Avi Kaufman– number four in this year’s power rankings.

THE 2024 POWER RANKINGS ARE HERE!: TCPAWorld’s (Third Annual) Definitive List of the Top 10 Most Dangerous Plaintiff’s Firms Out There (And there is a NEW NUMBER ONE!)

Chat soon…