Dealing with the “Professional” Nuisance Plaintiff

Imagine you have a beautiful, ripe apple on your desk that you were saving for lunch.  You notice a fruit fly approaching it, and before you can swish it away, it eats one tiny bite of the apple.  Now if you kill the fruit fly, it will be crushed across your apple, so you let it buzz away.  An hour later, it comes back and eats another bite.  Again, you do not crush it because the whole apple might be ruined and it does not seem worth the effort.  Soon, your apple is ruined, and your office is filled with fruit flies.

Compliant, reputable companies face this same issue with “professional” Telephone Consumer Protection Act (“TCPA”) plaintiffs, some represented by counsel, but often pro se (suing on their own behalf without counsel).  Some of their claims are so ridiculous that any lawyer, not just one skilled in telemarketing compliance, would be able to have the claim thrown out with minimal (but some) effort and expense.

But is that expense worth it, especially when the plaintiff only wants a tiny bite of the apple?

I tend to think it is, and have an example from real life (sorry fruit flies).  A “professional” plaintiff in a remote area of the country has filed at least four lawsuits against charities and charitable fundraisers alleging that their calls violate the National Do-Not-Call Registry.

These suits are meritless—and we have told the plaintiff—because the National Do-Not-Call Registry does not apply to calls made by or on behalf of charities.  Both the Federal Trade Commission and Federal Communications Commission have explicitly said this.  See, e.g. “The National Do Not Call Registry does not limit calls by political organizations, charities, or telephone surveyors” available at https://www.donotcall.gov/faq/faqbusiness.aspx#who.

“I disagree,” says this plaintiff.  “I think so much money actually goes to the fundraiser that these calls are no longer on behalf of the charity, and therefore the National Do-Not-Call Registry applies.”

Interesting theory, but the Supreme Court has twice rejected this argument in cases that we have argued.  See Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003); Riley v. Nat’l Fed’n of Blind, 487 U.S. 781 (1988).

“Ok then,” he says, “See you next week in ______ (remote location of the U.S.) or you could pay me a nuisance settlement?”  This nuisance amount happens to be less than the cost of a flight and hotel to the location without even considering the cost of lawyers’ fees.

At some point, this results in a sort of tragedy of the commons, where each company that pays him off just feeds the fruit fly, but the company that fights him will pay more than those companies.  But paying him just creates more suits, against other companies (four and counting.)

Maybe it is time to crush the fruit fly.