Now this is just delightful.
Yesterday evening we had Anthony Paronich on our VERY FIRST episode of the Deserve to Win podcast and I asked him–as I am apt to do–about litigators who manufacture TCPA claims. Naturally he told me he has never come across it in his practice.
Well I certainly have.
Just yesterday, for instance, a fellow named Nathen W. Barton was ordered to pay $40k in fees (it could have been a lot more) for manufacturing a TCPA suit. And folks looking to hit back against litigators manufacturing the TCPA claims should pay close attention.
First, the facts.
Barton (apparently) willingly consented to receive the calls he sued for, using a phone he concedes he purchased for use in his TCPA advocacy. Barton then filed but ultimately withdrew a motion to remand, which was baseless and which he offered to withdraw if all five defendants agreed to give him additional discovery. Barton also holds himself out to the world as an expert in TCPA litigation, and runs (or at least ran, until sometime after January 21, 2022) a website called “TCPA University” which offers “consulting” on how to “stand up to [t]elemarketers.”
Now, the law.
28 U.S.C. § 1927, provides “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
Washington Local Rule 11(c) also authorizes an award of attorneys’ fees and costs where a party unjustly multiplies legal proceedings: “An attorney or party who without just cause fails to comply with any of the Federal Rules of Civil or Criminal Procedure, these rules, or an order of the court, or who presents to the court unnecessary motions or unwarranted opposition to motions, or who fails to prepare for presentation to the court, or who otherwise so multiplies or obstructs the proceedings in a case may, in addition to or in lieu of the sanctions and penalties provided elsewhere in these rules, be required by the court to satisfy personally such excess costs and may be subject to such other sanctions as the court may deem appropriate.”
The Court found that Barton had, in fact, pursued a frivolous claim and had to pay fees: and it did not beat around the bush in setting forth the damaging facts:
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.
One down side to the ruling–Defendant actually sought over $160k in fees. But the Court found the fees were too high in the market and cut the award down to $40k.
Still this is a huge win for the Defendant–nice job taking it to the mat Leadpoint!
And hopefully all the would-be fraudsters out there trying to set up lawsuits are taking note. The industry has about enough of this and folks ARE fighting back. True Leadpoint lost $120k or so fighting this fight, but I suspect they’ll make that up in praise and notoriety (and a lot less TCPA claims)–especially now that I’m talking about it. 🙂
Bottom line is that industry participants are tired of being taken advantage of by trolls who use the judicial system to make a living by filing frivolous/manufactured lawsuits. And the Courts, by and large, are tired of it too.
We’ll keep an eye on this positive trend for you.
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