Plaintiffs Attorney Rejected As Class Representative in TCPA Suit

A plaintiff’s attorney who has been involved in at least three dozen cases against collection agencies was shown the door by a District Court judge last week as the named representative in a class-action lawsuit, largely because the attorney’s actions made him appear to be a professional plaintiff.

The attorney, Phillip Nghiem, has been a plaintiff’s attorney in nearly three dozen cases against collection agencies in the past two years, each alleging infractions of the Telephone Consumer Protection Act, according to data from WebRecon. In this case, Nghiem was attempting to sue Dick’s Sporting Goods (DSG) for violating the TCPA and sending mobile text alerts to Nghiem after he had revoked his consent. The original complaint said that Nghiem received nine text messages after he revoked his consent. In fact, the court alleged that the only reason Nghiem opted in to receiving the text messages but did not take advantage of any of the offers was so that he could potentially file a TCPA claim against the company. Nghiem admitted to entering into two other promotional campaigns operated by the same company that managed Dick’s campaign, and “several” other promotional campaigns at the same time.

The district court judge ruled that Nghiem would not be an adequate representative of the class because he is not an “ordinary class representative for a TCPA action.” The judge, however, declined to dismiss the case outright. A possible class action may still be move forward, but without Nghiem as the named plaintiff.

Two weeks before he signed up for the text message program from Dick’s, a subsidiary of Dick’s received a demand letter from Nghiem’s employer, claiming TCPA violations and demanding payment. Dick’s and the subsidiary received five demand letters from Nghiem and his firm, on behalf of four different clients, in the 10 months after Nghiem signed up for the text message program.

Clearly, the typical member of the class does not share Nghiem’s background and experience with the TCPA and DSG’s mobile alerts program. The typical member of the class has no special knowledge of the TCPA nor experience litigating claims under the statute. The typical member of the class signed up for DSG’s mobile alerts program because he or she was undisputedly interested in DSG’s merchandise and looking to score a bargain. And most importantly, the typical member of the class opted in and out of DSG’s mobile alerts program with the hope and expectation that his or her privacy would be respected and not invaded by unwanted text messages from DSG

A copy of the order is available here.