Last year, a professional plaintiff obtained a judgment of over $828k in a case alleging 104 calls in violation of the Telephone Consumer Protection Act (TCPA). The district court in the Northern District of West Virginia found that the individual and corporate defendants failed to respond “fulsomely and accurately” to discovery requests and to comply with court orders pertaining to those requests. As a sanction, the district court entered a default judgment against them.
In the underlying case, the defendants allegedly did not properly respond to inquiries regarding their interrelationships, corporate histories, prior lawsuits, and shared interests or ownerships. For example, an individual defendant did not disclose fifteen shared entities that the plaintiff independently uncovered indicating that his response of “only affiliated with [d]efendant Music City” may have been inaccurate.
This summer, the Fourth Circuit upheld that judgment. While the defendants argued that the plaintiff had produced no evidence that the defendants made any of the alleged calls, the court of appeals found that the district court had wide discretion in levelling sanctions and did not abuse that discretion. “The fact that [the plaintiff] did not have the evidence necessary to prove the merits of her claims was because of [the defendants] continued discovery abuses.”
The defendants’ failure to properly respond to discovery is eye-opening as it led to a massive judgment in an action where liability was not established. The plaintiff was awarded damages under both the TCPA and the West Virginia Consumer Credit and Protection Act (WVCCPA) for the exact same calls. While the statutory penalty under the TCPA was limited to $500 per call, the WVCCPA allowed for a base statutory penalty of $3,000 per call which, when adjusted for inflation, increased to $5,373.09 per call.
This case underscores how dangerous TCPA and WVCCPA cases can be for defendants as well as the potential consequences of discovery violations.
The case further highlights the dangers of “professional plaintiffs” and the need for heightened attention to discovery in these cases. The plaintiff in this case has obtained many judgments in her favor and claims that by investigating illegal telemarketers and prosecuting claims under the TCPA, she is “doing exactly what Congress intended — enforcing the law.” Most recently, the same litigant filed another lawsuit over the Camp Lejeune litigation phone calls. If the professional plaintiff’s name ever finds its way on a telemarketer’s list, best practices call for deleting it.
