Two cases in the past few years involved a similar issue, but opposite outcomes. In the first, Murray v. GMAC Corp., the defendant argued that a family that had brought fifty Fair Credit Reporting Act lawsuits were "professional plaintiffs," and therefore inadequate to represent a class.  The Seventh Circuit, in an opinion by Judge Easterbrook, held that that the plaintiffs’ "professional" status did not disqualify them from being adequate class plaintiffs. By contrast, in Gordon v. Virtumondo, Inc., the Ninth Circuit held that an individual plaintiff who set up an email account in order to collect emails that violated the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 was a professional plaintiff who lacked standing to sue even on his own behalf.

What’s the difference between these two cases? Law student Brandon Murrill has an explanation, which he lays out in his Note The Business of Suing: Determining When a Professional Plaintiff Should Have Standing to Bring a Private Enforcement Action. As he puts it:

Despite superficial differences, professional plaintiffs like Gordon are members of a species of litigant—a species with a few defining characteristics. First, and most importantly, professional plaintiffs are professional, meaning that they are in the business of bringing lawsuits with the primary aim of winning large sums of money. They and their lawyers may claim to have other goals, such as fighting for the underrepresented “little guy” against powerful interests, but these goals remain secondary considerations to the ultimate goal of collecting damages.

Second, professional plaintiffs often play a role in bringing about the injuries that serve as the foundation for their lawsuits, al- though some play a more active role than others. One example is the professional plaintiff with a disability suing under the ADA who actively scours local businesses for obscure, technical violations to serve as the basis for a cause of action.

Murrill suggests that the best solution to the professional plaintiff problem is legislative: he recommends that states should adopt stricter standing requirements. But his Note also suggests a way for defense counsel to counter professional plaintiffs.  According to Murrill, the key difference between an acceptable and unacceptable plaintiff is the presence of a self-inflicted injury. It’s one thing to be litigious, and another to have a business interest in bringing lawsuits. In one case, the plaintiff is experienced (and likely unpleasant). In the other, the plaintiff has a close business relationship with his attorney, one that leads him to expose himself to harm and likely compromises his ability to adequately represent a class. If the defense focuses on the professional’s relationship with his attorney and the lengths he will go to further that relationship, it should be able to demonstrate that he lacks the independence to stand up to his business partner on behalf of a class of amateurs.

TAGS – adequacy FCRA