Was out yesterday and, of course, some big news broke.
Vivek Shah– the king of CIPA shakedown demands–have been declared a vexatious litigant by a federal district court in California.
Lots of lawyers talking about this on social media have already gotten the impact of the ruling wrong.
Let me start with this– NO this does not mean Vivek Shah is banned from ever suing people again. That’s not even close to how this works.
On the other hand the order DOES make it harder for him to sure in some courts and will hang as a dark cloud over any suit he files in the future.
So here’s what it really DOES do- it requires Vivek to request court approval if he files a CIPA (or related) suit in the Central District of California. That’s it.
Now the court in passing on this application will assess whether the suit has merit and determine whether Vivek must post a bond in order to proceed with the suit- so this will really trim down the number of suits he is likely to bring in that jurisdiction (i.e. it will likely fall to zero.) But technically he CAN still sue– even in C.D. Cal and even under CIPA– he just needs permission to do so. (And some courts WILL give that permission– we have seen it with TCPA suits in the past). So Vivek is down but not necessarily completely out.
Then again to get past a pre-filing order he will have to show he actually USED your website– not just that he visited it to set up a lawsuit. That is the thrust of the vexatious litigant order against him and will be the real rule of thumb moving forward. If the guy was actually making use of the website he still can probably sue– but if he was just visiting to create a record of non-compliance to empower a lawsuit he is TOAST in the C.D. Cal from now on.
But if your business is not in the C.D. Cal the order does not directly protect you.
The vexatious litigant order is limited as follows:
- It applies ONLY to suits in the C.D. Cal.;
- It applies ONLY to CIPA (or similar) suits;
- It only requires him to obtain a pre-filing approval (it does not ban him from filing outright); and
- It applies ONLY to new suits– not to those that are pending (not even the suit where the order was entered).
If your business is outside of California there is still a risk Vivek sues you–and he will not have to obtain a pre-approval order to do so. That’s the bad news.
But you can rest assured courts outside of the C.D. Cal (especially other courts in California) will be eager to issue similar rulings given Vivek’s track record here. So overall this is a GREAT development– its just not a complete slam of the courthouse doors in his face.
Have questions?
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