VANISHING ACT: TCPA Defendant Avoids Fees And Sanctions After Its Attorney Disappears

Hi TCPAWorld!

In Wilson v. MAH Group, Inc., No. 6:25-cv-00855-MTK, 2026 WL 1983213 (D. Or. July 8, 2026), the United States District Court for the District of Oregon denied a TCPA plaintiff’s motion for attorney’s fees and two separate motions for sanctions, even though the Court had previously granted the plaintiff’s motion to compel. The Court found that the defendant’s discovery failures were substantially justified because they were caused by the defendant’s original attorney, who inexplicably stopped communicating with everyone in the case, and because the defendant’s new counsel worked diligently to cure the deficiencies once retained. The Court also rejected the plaintiff’s argument that the defendant controlled, and therefore had to produce, records held by its third-party marketing vendor.

Background

Plaintiff Chet Michael Wilson filed a putative class action against MAH Group, Inc., doing business as WolfPak, alleging that the defendant unlawfully initiated telemarketing calls and text messages in violation of the TCPA. The defendant denied the allegations and asserted that the plaintiff consented to receive the text messages at issue.

The discovery timeline here is where things get strange. The plaintiff served his first discovery requests on July 3, 2025. Through its original pro hac vice attorney, the defendant requested, and the plaintiff accommodated, at least seven extensions of the initial production deadline. When the defendant finally responded on September 19, 2025, it objected to some requests, left others unanswered, and provided no substantive responses at all. In emails to the Court, the attorney admitted that he, not his client, was the cause of the overdue responses and promised to deliver them by mid-October. He never did. The plaintiff moved to compel on October 29, 2025, and the Court granted that motion on December 17, 2025, ordering complete responses within 30 days, including class-wide call detail records and all evidence of written consent.

Then the story takes a turn. The defendant’s attorney had not been heard from by anyone since October 2025. Emails went unanswered. The defendant’s CEO, who had known the attorney professionally for years, described the silence as completely “out of character” and expressed fear that “something terrible had happened to him.” The CEO did not even learn that the motion to compel had been granted until December 31, 2025, when local counsel alerted him to the compliance deadline. The defendant retained new counsel on January 15, 2026, obtained a short extension, and produced amended responses and a substantial document production by the January 30, 2026 deadline. When the plaintiff raised new objections in mid-February, defense counsel responded to all of them within four hours, and supplemental productions of records obtained from third-party vendors Yotpo and Klaviyo followed within days.

No Fees, Despite a Granted Motion to Compel

The plaintiff sought $8,125 in fees for the 10.83 hours spent preparing the motion to compel, plus another $5,850 for the 7.8 hours spent preparing the fee motion itself, all at a $750 hourly rate. Under Rule 37(a)(5)(A), a court that grants a motion to compel must ordinarily award the movant its reasonable expenses, but not where the opposing party’s conduct was substantially justified or other circumstances make an award unjust. The Court agreed with the defendant that this was a rare case of a party left in the dark about its own discovery deadlines, and that the motions were necessitated by the acts and omissions of the vanished attorney rather than the client. Because it remains unknown what happened to the attorney, the Court could not determine whether his noncompliance was substantially justified, and it denied the fee motion with leave to renew if further information comes to light.

No Coercive Sanctions Either

The plaintiff also asked the Court to impose coercive sanctions of $300 per day, running from February 1, 2026, for the defendant’s alleged failure to produce class-wide telemarketing data held by its former vendor Yotpo. In the Ninth Circuit, discovery sanctions are appropriate only in extreme circumstances where the violation is due to willfulness, bad faith, or fault of the party. The Court found nothing of the sort here. New defense counsel had roughly two weeks after being retained to coordinate with third-party vendors and still met the January 30 deadline, then promptly amended its production in response to the plaintiff’s follow-up arguments. The Court characterized the remaining disputes as good faith disagreements or reasonable mistakes, noted the absence of any prejudice to the plaintiff, and held that any failure was substantially justified and had since been cured.

The Second Sanctions Motion Fails Too

The plaintiff filed a second sanctions motion seeking another $4,122.50 in fees plus the same $300 daily sanction, or alternatively an order precluding the defendant from relying on any Yotpo evidence of the plaintiff’s consent. The dispute centered on whether consent records maintained by Yotpo, generated through popups on the defendant’s website prompting customers to enter their phone numbers for special offers, were within the defendant’s possession, custody, or control. Under Ninth Circuit law, control means the legal right to obtain documents upon demand, and the party seeking production bears the burden of proving it. The plaintiff’s argument boiled down to the assertion that because the defendant was able to obtain some records from Yotpo, it must control all of Yotpo’s records. The Court rejected that logic because the defendant had contacted its nonparty vendors, produced at least 560 pages of discovery including consent evidence and lengthy spreadsheets of messages sent by Yotpo and Klaviyo, and even asked the plaintiff to clarify which additional records he wanted, an invitation the plaintiff refused. Notably, the defendant also submitted a letter from Yotpo’s legal counsel stating that Yotpo does not use an automatic telephone dialing system, raising what the Court called significant questions about whether the plaintiff consented and whether the messages are governed by the TCPA at all.

Additionally, the Court refused to allow the plaintiff to file supplemental materials or a reply brief, pointing out that the plaintiff had already improperly filed a reply in violation of the District of Oregon’s local rule prohibiting replies on discovery motions absent Court permission. And the Court granted the defendant’s motion to terminate the pro hac vice appearance of its missing attorney, who under the local rules had ceased to act.

Takeaways

This decision is a reminder that Rule 37 fee-shifting is not automatic, even after a granted motion to compel. Courts retain discretion to deny fees and sanctions where the record shows the client was blindsided by its own counsel and moved quickly to make things right. A defendant facing a discovery crisis inherited from prior counsel should do exactly what this defendant did: retain new counsel immediately, communicate with the Court, and produce in good faith on an aggressive timeline. The decision is also a useful data point on the vendor-records question that comes up constantly in TCPA class actions. The mere fact that a defendant can persuade a cooperative vendor to hand over some records does not establish the legal right to obtain all of the vendor’s records on demand, and plaintiffs who want that data may need to subpoena the vendor directly rather than demand sanctions against the defendant.

We will keep you posted, TCPAWorld!