Historically, courts have grudgingly accepted the professional plaintiff in class action practice. As Judge Easterbrook of the Seventh Circuit once said, in the context of a FCRA class action, the word professional “implies experience, if not expertise.” One law student note offered one possible strategy for arguing that professional plaintiffs are inadequate class representatives: focus on their relationship with class counsel.
In Donaca v. Dish Network, LLC, No. 11-cv-02910-RBJ-KLM, 2014 U.S. Dist. LEXIS 19740 (D. Colo. Feb. 18, 2014), the District of Colorado offers another possible argument. Donaca involved alleged robocalls made in violation of the TCPA. The named plaintiff, as the court noted:
has made it his business, literally, to fight back. According to his deposition testimony, he considers himself to be a consumer rights advocate. He does regular research on telemarketers. He estimates that in 2011 he derived approximately 60% of his income from TCPA-related activity, meaning collecting money through settlements of claims he made against violators. He belongs to an email group of consumer rights advocates, many of whom deal in telemarketing, and through which he met his lead counsel in this case.
(Internal citations omitted.) As professional plaintiffs go, that all sounds noble enough. Who wouldn’t want to sue robocallers and make some money while doing it? But Mr. Donaca had a few problems. First, it wasn’t clear he was a member of the proposed class. But, more important for our purposes, his activities undermined his counsel’s ability to argue that a class action was superior to other forms of litigation. Or, as the court put it:
the facts of this case do not convince me that class treatment is necessarily superior to other methods for a fair and efficient adjudication of TCPA claims. Mr. Donaca’s own example suggests the contrary. He has been generating something in the range of 60% of his income from suits or threats to sue telemarketers. Few people will make such claims for an occupation or avocation. But it does seem to me that if one is sufficiently annoyed by unsolicited prerecorded calls (or live calls), there is a remedy that has actually and successfully been used.
The takeaway here? If you suspect you have a professional plaintiff, dig into just how professional he is. The better he does at his “job,” the more likely you have a good superiority argument.