Client solicitation 101: Don’t robocall the guy running the mass tort

August 30, 2016

The blessing and curse of automated dialing is that robocallers operate without human assistance. That’s great if the goal of the call is, say, to tell parents of schoolkids about a snow day. But a new class action in federal court in Ft. Worth, Texas, suggests that robocalls just might not be the best way to drum up clients in mass tort litigation.

The lead plaintiff in the class action, a Texan named John “Scotty” MacLean, alleges that he received a phone call on July 16 from a number identified as belonging to the “IVC Claims Center.” When MacLean answered the call, according to the complaint, an automated voice advised him to push a particular button if he or anyone he knew had been harmed by an IVC filter. (IVC stands for inferior vena cava; IVC filters are tiny cone-shaped medical devices intended to prevent blood clots from reaching a patient’s heart or lungs.)

Scotty MacLean, as you shall see, had a particular interest in personal injuries caused by IVC filters. He pushed the designated button and was connected to a live representative. MacLean asked some questions and was eventually informed that if he wanted to file a lawsuit, his claim would be handled by Christopher Johnston of the Johnston Law Group. According to his complaint, MacLean told the live rep that he wanted to talk to his wife before moving forward. He requested a callback number, and was given an 800 number for the Arentz Law Group, a law firm that specializes in generating personal injury cases through advertising.

Unfortunately for the Johnston and Arentz firms, Scotty MacLean just happens to be one of the plaintiffs’ lawyers on the steering committee in multidistrict litigation against Cook Medical, one of the makers of IVC filters. (Lead plaintiffs’ counsel in the case are Ben Martin, David Matthews and Matthew Heaviside.) MacLean was none too pleased about what he considered to be improper solicitation in a high-profile case he is helping to direct. And as a Texas resident, he had a powerful way to express his displeasure: State laws entitle the recipients of improper solicitations to file a lawsuit – otherwise known as barratry – to $10,000 for every violation.

So MacLean filed a class action on behalf of all Texans who received robocalls from the marketers working on behalf of Johnston and Arentz. “The marketing cost associated with ‘mass tort’ litigation is significant but most attorneys and firms abide by the rules and laws established by the courts, their bar associations and state statutes regarding barratry,” his complaint said. “Sadly, there are attorneys and law firms that ignore ethical rules and barratry laws and use any means necessary in the mad dash to grab as many clients as they can. These firms blatantly and with complete disregard for the law (and at any cost) unethically and illegally solicit clients.”

Mass torts case generation has increasingly become the province of professional marketers who use tactics developed outside of the litigation arena. Occasionally that leads to incidents that are, at best, embarrassing for the marketers, such as when the wife of a defense lawyer for Johnson & Johnson received an unsolicited phone call asking if she had been implanted with pelvic mesh and wanted to file a suit. Johnson & Johnson cited that call and other solicitations in a 2015 motion for discovery on the origin of cases in the sprawling transvaginal mesh litigation; the company subsequently withdrew the motion when leading plaintiffs’ lawyers in the case pointed out that they had previously cited their own concerns about improper solicitation to the West Virginia federal judge overseeing the multidistrict mesh litigation.

MacLean’s class action, however, is the first time I’ve heard about a plaintiffs’ lawyer suing members of the plaintiffs’ bar for barratry. I have to assume that MacLean’s personal injury firm, MacLean & Boulware, does not have a referral relationship with Arentz or Johnston.

I left phone messages for MacLean, Johnston and Arentz but did not immediately receive responses.

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