TCPA v. Young
23CA0891
| Colo. Ct. App. | Sep 19, 2024Background
- TCPA Litigator List, founded by Michael O’Hare, offers a subscription service that compiles and tracks individuals likely to file lawsuits under the Telephone Consumer Protection Act (TCPA).
- Adam Young, CEO of Ringba (and Tubmanburg Ltd.), purchased a subscription to the TCPA Litigator List as part of Ringba's investigation into adding a similar scrubbing service.
- After discussions about a potential acquisition (and an NDA signed between TCPA Litigator List and Tubmanburg but not Young or Ringba), Ringba launched its own service, TCPA Shield, using names from the plaintiff’s list.
- TCPA Litigator List sued Ringba, Young, and Tubmanburg for breach of contract, unjust enrichment, fraud, civil conspiracy, and violation of the Colorado Uniform Trade Secrets Act.
- Litigation involved significant discovery disputes, especially over access to source code and late disclosure of information, leading to two sanctions orders against the plaintiff.
- The trial court granted summary judgment on most claims, with only the trade secrets claim proceeding, but ultimately terminated the action due to discovery abuses by the plaintiff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sanctions – termination of the case | Court abused discretion by prohibiting expert testimony and dismissing | Discovery violations justified severe sanctions | No abuse of discretion—sanction affirmed |
| Prohibition of expert testimony (Frankovitz) | Delay was not willful or prejudicial; testimony should be allowed | Plaintiff’s expert reliance was unjustified and reckless | Prohibition upheld due to recklessness/credibility |
| Summary judgment – breach of contract | Disputed material facts precluded summary judgment | Evidence insufficient; no genuine issue of material fact | Summary judgment affirmed; no error |
| Summary judgment – fraud claim (economic loss rule) | Economic loss rule does not bar the claim | Economic loss rule bars fraud claim | Any error harmless due to sanction – affirmed |
Key Cases Cited
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (discretion and proportionality in imposing discovery sanctions)
- M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380 (Colo. 1994) (appellate deference to trial court’s factual and credibility determinations)
- Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000) (dismissal as sanction for willful discovery violations)
- Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564 (Colo. 2009) (when dismissal is appropriate for extensive nondisclosure)
- People v. Lee, 18 P.3d 192 (Colo. 2001) (sanctions should be least severe necessary to ensure compliance)
- Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691 (Colo. App. 2006) (harmless error doctrine)