Telemarketer breaks a deal and faces the wheel
- Peter Schneider
- Jan 31
- 7 min read
Updated: Oct 13
Many telemarketing lawsuits end in a settlement agreement. Most lawsuits that get past the motion to dismiss stage end in a settlement agreement.
And defendants often require settlement agreements to have confidentiality and non-disparagement clauses because they are concerned that if the TCPA plaintiff runs around telling the world that he got a big fat check for calls from the defendant, it will encourage a lot more TCPA plaintiffs to come after the defendant. From a defendant's point of view it rarely makes sense for them to settle without these clauses, and it is almost always the defendant who is ready to enforce the terms against the plaintiff should the plaintiff go public.
So it was unusual to see a lawsuit between Robert Doane and Joseph Delfgauw and Xanadu Marketing Inc. that had the reverse situation - the telemarketer Joe Delfgauw was alleged to have gone on YouTube and disparaged the TCPA plaintiff Robert Doane.
This is an action seeking damages for defamation and to remedy the breach of a settlement agreement ("Settlement Agreement" that was entered into between Plaintiff Robert Doane and Defendant Xanadu Marketing Inc. ("Xanadu") on February 17, 2020. Through the action, Plaintiff seeks damages and equitable relief resulting from Defendants' defamation of Plaintiff on the "Deserve to Win" podcast in February 2023 and the willful and purposeful breach of the non-disparagement provision of the Settlement Agreement.
In the facts section of the lawsuit, we learn that Robert Doane previously sued Joseph Delfgauw and Xanadu Marketing for unwanted telephone calls under the Telephone Consumer Protection Act, which resulted in a settlement agreement between the parties.
The settlement agreement said that no one would "disparage the other or share any information related to [the Settlement] Agreement with any third party, or party not a signatory to [the Settlement Agreement]".
This sounds very typical of telemarketing settlement agreements, but then the lawsuit goes on to allege that Joe Delfgauw was invited to be a special guest on Episode 10 of the "Deserve to Win" podcast, where he went on a rant about Robert Doane, disparaging him as a "professional scammer" that fraudulently manufactured claims under the TCPA, filed frivolous court cases, and is actually thrown out of court because judges are sick of him.
Joseph Delfgauw and Xanadu Marketing tried to dismiss the lawsuit, going with the "we didn't do it" defense.
Neither Defendant defamed Plaintiff in the podcast referenced by Plaintiff. If neither Defendant stated any improper facts about Plaintiff, then he could not have been damaged, and therefore, the claim fails. In fact, Defendants found no mention of Plaintiff anywhere in the podcast, so all of Plaintiff’s claims fail because the facts support no claims of him being damaged.
But that was a hard sell because a transcript of the podcast said otherwise.
Robert Doane was our first one, by the way. And Robert Doane, I don't know -- I'm sure you guys know who he is, right? ERIC J. TROUTMAN:· Mm-hm. So we have so much information on him now that he actually will not sue us, so we've got all the phone numbers, all the inducements, we got all the stuff -- we actually were going to approach the attorney general in Massachusetts and actually say, hey, by the way, this guy is doing this, but we actually had an attorney from Boston -- I don't know if I can talk this long, but an attorney from Boston told us in court they actually throw out of the court now.· They're like, dude, you again?· The judges are like you again?· Like get out of here.· Like they're mad at him because he's bringing up all these federalist court cases and he's using Massachusetts law, an extra law above and beyond the TCPA to actually basically say it's going to cost you 50 grand to defend yourself or 20 to settle.· And that's when I started to say, you know what?· Never -- he was the one that made me say never again. Because he induced a call from a company called News Care Plus, which is now owned by Motor Trend that they actually said, we're going to settle with him because we don't want this case.· I'm like I'll defend it.· I'll pay for it. I'm never settling again.· That was the first one that made me say, I'm never doing this again.· And you know what? I'm not rich, but I would rather -- I'm sorry.· This is going to sound really stupid to a lot of people.· But I would rather try and do the right thing -- because I've done the wrong thing in my life before.· I'm tired of it.· People that are doing this stuff, they need to get a job, they need to get a career. They need to not try to use this law
But don't take my word for it, this is an alleged transcript of the podcast.
Of course their motion to dismiss was denied.
And this case looks like it is headed to trial later this year. So what can pro se telemarketing plaintiffs learn from this situation? Given that typically the defendant supplies the settlement agreement, make sure all terms (liability releases, confidentiality, non-disparagement in particular) apply equally to both parties. I would not have a client sign a settlement agreement that was even slightly one sided. Further, Robert Doane set himself up for success by having the contract stipulate that future litigation concerning the contract be done in his home courts of Massachusetts, not in some far flung home court of the telemarketer.
And finally, Robert Doane did the world a favor to hold Joseph Delfgauw's feet to the fire for allegedly going on a YouTube video and defaming him. Most telemarketers are so accustomed to ignoring the law it can be easy for one to think the laws are meaningless, and Mr. Doane gave Mr. Delfgauw and telemarketers like him a reality check.
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Breaking settlement agreement isn't just for the Joe Delfgauw's of the world, in case Ewing v. Freedom Forever, LLC, 23-CV-1240 JLS (AHG), 9 (S.D. Cal. Aug. 21, 2024) the telemarketer alleged that Ewing breached the terms of a prior settlement in an earlier telemarketing lawsuit in the text of a later lawsuit he filed against the same telemarketer. In this opinion Ewing temporarily fights off two of the court counterclaims but the judge thought "Plaintiff may have secured the dismissal of two of Defendant's counterclaims, the Court concluded that said counterclaims might be saved by amendment." The earlier settlement agreement apparently had a non-disclosure/non-disparagement clause and Ewing's litigation privilege argument fell flat:
Plaintiff contends that he had to make the alleged statements to bring his lawsuit. But, as Plaintiff has previously emphasized, he has not brought a claim for breach of the settlement agreement. Moreover, neither Plaintiff's TCPA nor his CIPA claims require Plaintiff to reference a past settlement agreement. And even if they did, Plaintiff could have alleged that he previously settled claims without including a near-full copy of the agreement as an exhibit to his Complaint. Plaintiff, therefore, has fallen into a trap of his own making.
In case your not convinced to me mindful of the terms of a settlement agreement, let's look at the wild case in Shields v Ultimate Vacation Group LLC. I'll just call them Ultimate. I'll give you the punchline first. Ultimate sued Shields for breach of a settlement agreement that resolved an earlier lawsuit between the parties. Shields moved to dismiss, it was denied, Shields filed for an interlocutory appeal, and lost.
The earlier lawsuit was a telephone consumer act case where Shields sued Ultimate for unwanted phone calls. Ultimate claimed Shields went onto a website and entered his phone number, asking for the calls. Shields says he didn't even have the phone number until one month later.
While the litigation was pending in federal court, Shields filed a comment with the FCC under Docket No. 02-278. In his comment, Shields shared his belief that Ultimate fabricated documents to show that he allegedly had consented to receive the unsolicited call. The parties settled the federal litigation. In the settlement agreement, Shields warranted that he had not disseminated or distributed any “Confidential Information,” as defined in the agreement, “with anyone for any reason at any time.” The settlement agreement further provided that Shields would be liable for any material breach in the liquidated amount of $45,000.
After this settlement, Ultimate learned about the FCC comment and demanded that Shields do whatever needed to remove the claim from the public record, and demanded $500,000 from Shields. Shields refused to pay and Ultimate sued for breach of contract. Shields moved to dismiss under a variety of arguments that all failed.
In this next example, Dobronski was able to put Ovation Tax Group LLC over the horns of a dilemma:
IT IS ORDERED that Defendant Ovation has 14 days from the date of this Order to furnish payment to Dobronski in the amount of $10,000.00 and to provide disclosure of the marketing company used by Ovation, pursuant to the terms of the settlement agreement. IT IS FURTHER ORDERED that failure to fully comply with this Order by Defendant Ovation will result in a default judgment being entered against Defendant Ovation as set forth in the motion for default judgment in the amount of $329,000.00, plus fees and costs.
The lesson of these cases is, settlement agreements are contracts and those that enter into them should take them seriously because on one or both ends of a TCPA lawsuit might be a litigious personality who won't mind another opportunity to duke it out in court.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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