Yesterday the Fourth Circuit Court of Appeals ended one of the most interesting stories in the history of TCPAWorld.

Back in 2017-2018 TCPA cases weren’t all filed as class actions like they are now. Many were brought as individual suits and many were brought in the context of debt collection. And there was probably no more popular target for these suits than student-debt collector Navient.

Now Navient was allegedly blasting people with calls using an autodialer long after they asked for calls to stop. This was before the days of Facebook and the ATDS claims were very popular–especially in the Ninth Circuit Court of Appeals footprint following the disastrous Marks opinion.

While there were multiple firms pursuing Navient for alleged TCPA violations, the man responsible for a huge number of these filings was a guy named Jeff Lohman. 

Lohman was an unlikely TCPAWorld villain. The guy sprang up seemingly out of nowhere one day with a huge volume of cases. But his focus on Navient drew the company’s ire– especially at the cases kept resulting in fairly quick settlements.

What really pissed Navient off, however, is that once Lohman stepped into represent the borrower they would stop paying Navient. And since the borrower was represented by Lohman Navient really didn’t have any recourse– it couldn’t call the borrower for payment or communicate with the borrower in anyway to encourage the borrower to come current.

Navient soon recognized that if Lohman’s practice continued to grow and people learned they could get out of paying back their student loan just by suing over the frequent phone calls Navient made they would have a serious problem. And the fact that borrowers were seemingly using vague and scripted language to opt out of future calls– language Navient’s agents were seemingly not trained to identify and honor– seemingly meritorious TCPA cases were very easy to set up.

Rather than just train its agents to be on the hunt for this sort of tactic and to honor DNC requests, Navient went on the warpath.

It sued Lohman in a federal RICO case arguing that he was engaging in racketeering and a conspiracy with his own clients by encouraging them not to pay Navient in order to set up TCPA lawsuits.

Now this was a very serious issue for Lohman. If he had lost it could have cost him millions. Regardless, the suit basically chased him out of the practice of law and he ended up opening a pool hall as a result. (Seriously, he talks all about it in his Deserve to Win podcast interview.)

But he still had to defend himself to avoid a seven figure judgment.

And he did. Sort of..

The case went all the way to a jury trial where Navient actually won a judgment of over a million dollars against Lohman! But in a huge turn of events, in post-verdict proceedings the lower Court ended up throwing out the jury verdict and handing Lohman the win.

Indeed the lower Court found Lohman had done nothing wrong and it was Navient’s conduct that caused its own loss. As the lower court found:

The problem with Navient’s argument is that it was Navient’s conduct violating the TCPA that caused its damages.

Eesh.

But Navient wasn’t done.

Hoping to resurrect its jury trial victory Navient appealed the case to the Fourth Circuit Court of Appeals arguing that Lohman’s TCPA suits were a “sham” and were not protected by First Amendment protections.

The appellate court disagreed but did open up a very interesting argument for those facing high-volume TCPA litigation today.

In Navient Solutions, LLC v. Jeff Lohman, 2025 WL 1299003 (4th Cir. 2025) the appellate court handed down a published opinion holding those who bring TCPA litigation can be sued for it– but only if their case is a “sham.”

The standard here is interesting:

When adopting the California Motor standard, this Court explicitly rejected the argument that a series of actions should be analyzed under the two-step test we use to assess a single action. See Waugh Chapel, 728 F.3d at 363–34. Under this strict two step analysis, a court first considers the suit’s objective merits and “[o]nly if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.” Pro. Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60–61 (1993); see also IGEN Int’l, 335 F.3d at 312 (“even litigation that is deceitful, underhanded, or morally wrong will not defeat immunity unless it satisfies the objective baselessness requirement”). 

As Waugh Chapel instructs, to properly assess the TCPA actions, we ask whether defendants “indiscriminately filed (or directed) a series of legal proceedings without regard for the merits and for the purpose of violating [the] law.” 728 F.3d at 364. This question prompts a “holistic evaluation” of “the subjective motive of the litigant and the objective merits of the suits” as well as “other signs of bad-faith litigation.” Id. 

Hmmmm.

While the appellate court found Lohman’s cases were NOT a sham– even Navient’s own briefing conceded the ATDS issue was an open issue at the time and Lohman’s cases may have merit, which was the entire reason Navient couldn’t shake them– cases being brought today by other TCPA litigators may very well meet this definition.

Take the rash of out-of-time limitation SMS suits–hundreds!–being pursued by Hindi’s office right now. 

Per the R.E.A.C.H. reply filed the other day, most of these cases are settling rapidly. They seemingly have no staying power and are being brought just to extort…er, extract.. a quick settlement. And there does not seem to be any objective merit to most these cases– the CFR timing limits plainly apply only to telephone solicitations, which does not include calls made with consent.

While some of Hindi’s cases might have been brought because consent was lacking, it feels like his office has “indiscriminately filed (or directed) a series of legal proceedings without regard for the merits and for the purpose of violating [the] law.”

Then again, his office has argued that consent to receive calls must be “specific” and not “general,” so perhaps this slender reed of advocacy will protect him from a “sham” litigation determination, but I am not so sure. Haven’t seen anything suggesting this argument holds water and if the FCC comes out and categorically rejects it I could imagine counter litigation might be on the horizon.

Hindi is not alone, of course. As TCPA class litigation filing volume hits the stratosphere a number of attorneys– both old school filers and new filers alike– seem to be taking a “high volume” model.

Perhaps these cases are being well investigated and are all meritorious. They’d better be. With the new Navient ruling in hand I know many TCPA defendants will finally feel empowered to start fighting back.

For Jeff Lohman, however, the victory here must feel pretty sweet. His conduct was rather blasé by today’s standards– heck, even during his own heyday he wasn’t close to the highest volume filers like Sergei Lemberg. So walking away with the W probably feels great.

Then again, its a “dose of your own medicine” sort of situation. Lohman has felt the very real sting of litigation cost he had imposed upon others– both in terms of lost money and time. Its a sting that too many in TCPAWorld have felt for years now…

In the end the Navient/Lohman lesson is one for all to heed. Litigation isn’t a game and the federal courts aren’t a playground. Let all who enter there understand the stakes and have a legitimate desire to see justice done.

And for those who are just looking to make a quick buck by filing high-volume litigation with no real merit, watch out. Your time may be running out.

Chat soon.