Despite all the bad TCPAWorld news I have to report, I do my best to stay relentlessly positive around here.

People need that, and I like to provide that. A little smile here, a smirk there, a chuckle, a riotous laugh.

The Czar provides the levity in a sometimes bleak world.

But today is just frustrating. Sorry if it is shining through a smidge.

Digital Media Solutions.

DMS.

Decent folks actually. I don’t despise them so much as I once did, although they continue to represent the “old guard” and refuse to join R.E.A.C.H. to help clean up the industry, so they are suspect in my book.

Maybe they’ll turn it around soon. Who knows.

But this isn’t a story about a consent farm lead– already did THAT story earlier— this is a story about bad lawyering, which is even more frustrating to me.

DMS got sued down in Texas for failing to register as a telemarketer under the state’s registration rules. The problem? DMS is probably exempt from those rules.

Ok great. So what’s the problem?

Well DMS failed to make the proper argument when raising the issue and, as a result, the Court refused to dismiss the case and held DMS has to answer for a statutory violation it literally couldn’t have committed because it is publicly traded:

In responding to Plaintiff’s objections, DMS proposes alternative grounds for affirming the magistrate judge’s recommendation, contending that: (1) it does not qualify as a “seller”; and (2) it is a publicly traded company that is exempted from complying with § 302.101 and the Texas Business and Commerce Code. DMS moved to dismiss Plaintiff’s § 302.101 claim on the ground that Plaintiff’s pleadings regarding its seller status are inadequate, but it did not object to the magistrate judge’s decision to focus on other arguments in ruling on its Motion to Dismiss. DMS, instead, raised this legal argument for the first time in response to Plaintiff’s objections. The Report makes clear that timely written objections not asserted within fourteen days are waived. The court, therefore, declines to consider this waived argument. DMS’s contention about being exempt as a publicly traded company was not raised in its Motion or presented to the magistrate judge. “[A] party who objects to the magistrate judge’s report waives legal arguments not made in the first instance before the magistrate judge.” Freeman v. County of Bexar, 142 F.3d 848, 851 (5th Cir. 1998) (citing Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994)). Thus, in presenting this legal argument for the first time to the undersigned in responding to the Report, DMS waived the issue

So, clear and complete defense.

WAIVED!!!!

Just brutal.

Interestingly, this case involves mass tort firm KIRKENDALL DWYER, LLP who was apparently the lead buyer.

I always find it fascinating when lawyers sue lawyers. Especially when plaintiff’s lawyer sue plaintiff’s law firms. No honor among thieves I suppose.

Anyway, take away here is pretty clear: HIRE GOOD LAWYERS WHEN YOU ARE SUED so, you know, they don’t waive arguments.