Nearly half of all calls to U.S. cell phones in 2019 will be spam. This statistic is according to a study referenced by the Federal Communications Commission in a recent report, Report on Robocalls, CG Docket No. 17-59, A Report of the Consumer and Governmental Affairs Bureau, Federal Communications Commission (February 2019). In this environment of pervasive spamming, it seems hard to imagine that anyone would need to fictionalize such a call to justify bringing a lawsuit. However, one plaintiff in New Jersey did just that.
On April 15, Judge Noel Hillman of the United States District Court for the District of New Jersey dismissed a plaintiff’s Telephone Consumer Protection Act lawsuit against the workplace communications company Slack Technologies after it was revealed that the plaintiff’s claims were part of an elaborate scheme, likely manufactured to benefit from the TCPA’s statutory damages provision, which authorizes plaintiffs to recover monetary damages in the range of $500-$1,500 per violation. In D’Ottavio v. Slack Techs., No. 18-cv-09082, 2019 WL 1594270 (D.N.J. Apr. 15, 2019), plaintiff Gino D’Ottavio, a frequent TCPA filer, attempted to bring a class action lawsuit against Slack for allegedly sending him over 1,500 “unsolicited” text messages. In response to D’Ottavio’s claims, Slack filed an answer with counterclaim, alleging 1,590 counts of micro-fraud as a result of D’Ottavio’s deliberate abuse of Slack’s program by sending himself each of the allegedly “unsolicited” text messages in order to conjure a fraudulent TCPA lawsuit.
At the July 26, 2018 preliminary conference, the magistrate judge granted Slack’s request to conduct a forensic examination of D’Ottavio’s electronic devices. Rather than submit to the examination, however, D’Ottavio’s counsel filed an answer with general denials and moved to withdraw the complaint with prejudice and to withdraw as counsel for D’Ottavio. Slack then moved for Rule 11 sanctions based on D’Ottavio’s unsupported general denials.
In ruling on the motions, Judge Hillman granted D’Ottavio’s request to dismiss the complaint with prejudice but denied counsel’s request to withdraw, finding that Slack’s counterclaim and motion for sanctions required D’Ottavio’s counsel to remain in the case. However, Judge Hillman ordered D’Ottavio to submit a letter to the Court authorizing counsel to withdraw, with an acknowledgment of the pending actions against him. Judge Hillman denied without prejudice Slack’s motion for Rule 11 sanctions as premature, reserving Slack’s right to refile its motion after discovery on its counterclaims.