January 18, 2022

Volume XII, Number 18

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TCPAWorld After Dark: The Lonesome Death of Ken Johansen’s Career as a Professional Plaintiff

I’m pretty sure I warned him.

I’ve warned most of them anyway.

He seemed a pleasant fellow. But he made $60k a year bringing TCPA class actions. So I couldn’t like him.

And I can’t mourn his career as a TCPA Plaintiff, even though it has now met with a sudden and certain demise.

Here’s how it ended:

Plaintiff appears to have an extensive history with filing lawsuits alleging violations of the TCPA. (See Pl. Dep. [DE 40-1] at 140:16-21, 157:10-17 (estimating that, prior to 2020, Plaintiff had filed sixty (60) TCPA lawsuits and estimating that, since 2014, Plaintiff has made on average $60,000 per year from TCPA lawsuits).) Plaintiff admits that “[i]t is his typical practice to pose as a customer when [he] receive[s] an illegal telemarketing call.” (Id. at 163:1-10.)

Plaintiff admits that he confirmed the false contact information that the representative had on file so that the representative would prolong and continue the call. (Dep. Johansen [DE 40-1] at 150:21-151:1.) Plaintiff admits that his “typical practice” includes “confirming whatever information a telemarketer has on [him], whether accurate or not.” (Id.at 163:16-25.)

Plaintiff readily admits that his conduct during the May 27, 2020 and June 2, 2020 telephone conversations was deceptive. (Pl. Johansen [DE 40-1] at 171:11-14.) Plaintiff intentionally prolonged and continued the telephone conversations by posing as Defendant’s customer, interested in a vacation package. (See id. at 99:4-100: 25.) Plaintiff also admits that he believes deception is appropriate behavior for a class representative. (Id. at 172:1-5.)

Plaintiff’s claim differs from those of putative class members’ claims. The record clearly demonstrates the deceptive and dishonest tactics employed by Plaintiff to establish his claim. Thus, Plaintiff’s claim is inherently different that those of the putative class members who presumably did not use similarly deceitful methods.

The honesty of a class representative matters because a representative “is a fiduciary and . . . the interests of the class are ‘dependent on his diligence, wisdom[,] and integrity.’” Koppel, 191 F.R.D. at 368 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 549-50 (1949).

Defendant argues that Plaintiff is an inadequate representative because of his deceptive conduct. The Court agrees. Plaintiff readily admits that his conduct during the May 27, 2020 and June 2, 2020 telephone conversations was deceptive. (Pl. Dep. [DE 40-1] 171:11-14.) Plaintiff has what appears to be an extensive and profitable history with lawsuits involving TCPA claims. Plaintiff acknowledges that he has developed a “typical practice” of deceitful conduct used to succeed in prosecuting TCPA claims. Plaintiff poses as a customer of the entity responsible for initiating the telemarketing call and induces the representative into believing that he is, in fact, an established customer and genuinely interested in the product or service offer, thereby prolonging the purported injury that Plaintiff claims to have suffered and increasing the potential damages that he could, in theory, recover.

Most concerning, during his deposition in the present lawsuit, Plaintiff admits that he believes that engaging in deception is appropriate behavior for a class representative. (Pl. Dep. [DE 40-1] 172:1-5.) Based on the foregoing, the Court has serious concerns about the Plaintiff’s credibility, honesty, trustworthiness, and motives in bringing forth this putative class action. Thus, the Court finds that the Plaintiff is an inadequate class representative.

Full decision here: Johansen v. Bluegreen Vacations Unlimited, Inc., No. 20-cv-81076-RS (S.D. Fla. Sept. 30, 2021) – [Doc 95] Order Denying Plaintiff’s Motion for Class Certification [9-30-21]

And so ends the long and profitable career of Ken Johansen as a TCPA class plaintiff.

The playbook is established.

No more repeat TCPA class reps get any more settlement dollars from now on.

Deal?

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 278
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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