iSo last month I was on an NPR podcast called Planet Money discussing TCPA litigation.
As you’d expect NPR’s take was that little guys–like Nathen Barton–who bring TCPA suits are heroes, doing what the rest of us won’t to end robocalls–suing the “bad guys.”
While the angle sucked, I was grateful to NPR for bringing on the Czar to at least try to tell the other side of the story–that SO MANY of these lawsuits are set up by people looking to abuse the TCPA’s massive (ridiculous) statutory damages to make a quick buck. And some of them are willing to stoop to anything to get those dollars.
While Barton himself was famously tagged for $40k in Washington for seemingly creating his own TCPA lawsuit, he was still viewed as the hero of the NPR piece.
But another guy out in New Jersey (allegedly) makes Barton look like the fine upstanding citizen NPR wants him to be– Gino D’Ottavio.
TCPAWorld readers are already well acquainted with this saga. Gino filed suit against Slack a few years ago arguing that he had received over 1,500 unwanted text messages and filed suit demanding $750k.
Well Slack’s counsel apparently determined that Gino had sent himself those messages. it turned around and sued Gino for fraud and on other theories, resulting in his (Gino’s) lawyers bailing on him and his complaint against Slack being dismissed.
Slack proceeded against Gino and obtained a default against him on the counterclaim. remarkably, despite the fact that Gino had gone silent and was without counsel Slack still managed to LOSE on 3 of the 4 theories they brought against him. Eesh.
But they did win one–and that’s all that matters for purposes of this story.
So in Gino D’Ottavio v. Slack Technologies, 2022 WL 17976822, 1:18-cv-09082-NLH-AMD (D. N.J. Dec. 28, 2022) the court granted Slack’s motion for attorney’s fees as damages upon having prevailed on a breach of contract theory against him.
Essentially the Court found that Plaintiff had violated the terms of use for the Slack platform when he blasted himself with texts to set up the lawsuit. The Court found that fees were appropriately awarded and that the total amount of fees– about $160k–was appropriate all things considered.
There is an irony here, of course, because the lawyers pursuing Barton in that separate case out in Washington state arising from a manufactured TCPA lawsuit had also sought $160k in fees– those fees were found to be excessive, however, and were reduced to a mere $40k.
But the D’Ottavio court awarded mostly every penny the Slack lawyers sought.
All they have to do now is collect…
We’ll keep an eye on this one.
