Repeat TCPA litigator Anton Ewing is renowned for his combative behavior in litigation. He had already been cautioned by a federal judge about his “uncivil” behavior before his latest dust up with a TCPA defense lawyer.

In Ewing v. Freedom Forever, 2024 WL 221432 (S.D. Cal. Jan 19, 2024) the Defendant asked the court to throw out Ewing’s case after he was unprofessional in emails to Defendant’s counsel and also directly communicated with a defense witness, threatening to depose him and advising him not to destroy evidence.

I pulled the emails and took a look at them. Apparently after a contentious start to the litigation the defense counsel suggested Ewing had been convicted of stalking someone but Ewing pushed back that he had never been convicted. Unsurprisingly this lead to further unpleasantness between the parties as they threatened sanctions back and forth.

Ewing said a few nasty things about he defense lawyer–suggesting he was a “bad person” and should be embarrassed to represent a telemarketer, etc.–but really it didn't look too bad to me. Worse thing Ewing said was that he didn’t “like” the defense lawyer, but I suppose that’s forgivable–although everyone likes the Czar, of course.

This email to a non-lawyer with Freedom is pretty bad though. A plaintiff should never reach out directly to a represented party in my view, and I also would have been absolutely livid has this occurred. So I understand what happened next.

What happened next is Freedom Financial sought to dismiss the case arguing that Ewing’s conduct was so extreme the case should be thrown out immediately.

The Court disagreed and elected not to sanction Ewing. While his conduct was described as unprofessional it simply did not rise to the level of being extreme and intolerable…yet.

The court did say the following, however:

the Court agrees with Defendant that Plaintiff’s emails are unnecessarily combative and unprofessional. The Court reminds Plaintiff that he is obligated, as a litigant before this Court, to comply with Civil Local Rule 2.1 in its entirety, including its requirements that he “seek sanctions sparingly, and not to obtain a tactical advantage or for any other improper purpose”; 4 “address legal arguments with other lawyers professionally[ ] and not personally”; and “treat adverse witnesses, litigants, and opposing counsel with courtesy, fairness[,] and respect.” See S.D. Cal. CivLR 2.1. The Court also reminds Plaintiff that as he must attempt to resolve disputes informally with opposing counsel and entertain reasonable requests for cooperation, see id., he may not refuse to communicate with opposing counsel via email, see Ewing v. GoNow Travel Club, LLC, No. 19-CV-297-BAS-AGS, 2019 WL 4688760, at *2 (S.D. Cal. Sept. 26, 2019). This Order constitutes a warning to Plaintiff that if his unprofessional conduct continues—and reaches a point that it interferes with the efficient resolution of this case—this Court may resort to monetary and/or terminating sanction

So there you go. The case lives on. But Ewing cautioned about his uncivil behavior–again.