By: John O'Brien
A Tennessee man, described as a professional plaintiff and sleuth with three cell phones, is allowed to continue one of his many lawsuits after faking interest in a free home security system to identify whom he wanted to sue for calling him about it.
“(I)t is safe to say that, when the telemarketers in this case called a phone belonging to (Craig) Cunningham, they – presumably unwittingly – found themselves in the sights not of an ordinary hapless consumer, but a seasoned plaintiff, likely primed and ready to take them to court if their actions violated the (Telephone Consumer Protection Act),” a federal judge wrote earlier this year.
Cunningham, of Nashville, hasn’t even needed a lawyer to represent him in most of his lawsuits brought under the TCPA, a federal law that punishes companies who violate it by exposing them to statutory damages- $500 for each call in some instances, $1,500 per call in others.
He represents himself in court, usually the U.S. District Court for the Middle District of Tennessee. But he has filed in other jurisdictions, sometimes through law firms.
Clearly, as Tennessee Judge Waverly Crenshaw wrote, Cunningham is the wrong man to call. He has filed approximately 83 TCPA lawsuits since 2014, including 19 this year. In asking for dismissal of a similar lawsuit, Nationwide Security Solution alleges he has three cell phones that he uses to compile TCPA claims.
It was Crenshaw who ruled in April that he has standing to bring these claims, no matter the circumstances that led to the calls – or the benefits they provided. Rapid Response Monitoring Services had argued in a motion to dismiss that Cunningham was glad to receive its calls so that he could file a lawsuit over them.
A recent landmark U.S. Supreme Court decision in Spokeo, Inc. v. Robinsheld that a plaintiff must have actually suffered harm in order to sue.
Since Cunningham welcomed the calls, there was no harm, the company said. It’s the same argument that was used to dismiss a Pennsylvania lawsuit in which a woman admitted she had a shoebox full of phones with different numbers that she used to amass calls that would help her file lawsuits.
Crenshaw even wrote that Cunningham admitted to leading RRMS on for the purpose of cultivating his claim.
“Nothing in the Constitution, though, requires a plaintiff to be a naif. Litigation is not college athletics: there is no ‘amateurs only’ rule,” Crenshaw wrote.
“Nor is there anything out of the ordinary or constitutionally suspect about a plaintiff’s being motivated by the prospect of reaping a reward rather than simply vindicating or receiving restitution for his constitutionally sufficient injury.”
Crenshaw’s opinion overturned recommendations made by Magistrate Judge Barbara Holmes two months earlier. She ruled Cunningham’s lawsuit had no legal merit.
It started with a series of calls to Cunningham from callers marketing home security systems through a “safety survey.” Cunningham decided to take the survey in order to find out what companies he needed to sue.
He pressed “1” to speak to an agent about the installation of a Safeguard America home security system. If he agreed to the installation, he’d need to pay for monitoring services provided by RRMS.
He received follow-up calls and even met with an installer. In court filings, Cunningham says he did not receive the system.
Cunningham was hunting bigger game than a security system.
“The calls show that Cunningham appears to have been very good at eliciting information from the callers that he could later use in this lawsuit…” Crenshaw wrote.
“(Cunningham) openly admits that the reason he eventually accepted one of the calls was ‘to ascertain the identity of the party’ placing them, and Cunningham has explained his sleuthing in significant detail himself.
“His later pleadings are entirely straightforward that he was in fact cultivating a claim.”
The result of the ruling is that Cunningham is allowed to continue pursuing his lawsuit. Most TCPA cases are quickly settled to avoid the cost of litigating them – it can cost $100,000 to defend a case through trial and $500,000 to fight a TCPA class action.
Cunningham isn’t idly waiting for a settlement from RRMS. In fact, he recently asked Crenshaw to sanction RRMS for not responding to his discovery requests.
Actually, more than 30 of his cases remain open. It is likely that current and future defendants will ask whether he actually sustained any harm under Spokeo, though he has filed 40 lawsuits since that ruling.
It’s not a one-man show. Cunningham does use attorneys in some cases.
For instance, the Law Offices of Todd M. Friedman, the most prolific TCPA-filing firm in the country, represents him in Utah.
Kaufman & Canoles, of Norfolk, Va., handles his Virginia litigation. In Wisconsin, it’s Roger Sage. For Florida, it’s Broderick & Paronich and Bailey and Glasser.
Aaron Mulvey, of Dallas, represents him in Texas. In Illinois, it’s Murphy Murphy Moul Basil, which teams with the Broderick firm there and in Maryland.
Another firm, Bellin & Associates, has filed his court documents in North Carolina and New York, while Humphreys Wallace Humphreys has done the same in Oklahoma.