Airlines have frequent flyer programs, restaurants and coffee shops have customer loyalty programs, and plaintiff’s class action firms have repeat class action plaintiffs.  These frequent class plaintiffs are either unlucky or they go looking for trouble.  See Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712, 714 (2015) (noting that email spam litigation accounted for 90% of plaintiff’s income).  Some serial litigants have been the lead plaintiff in multiple class action lawsuits.  See Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, ¶ 10 (company described “the plaintiff as a ‘professional class action plaintiff’ who has filed 23 class-action complaints in the past eight years, using the same attorneys that represent him in this action.'”).  Unfortunately, the law does not prohibit the same person from filing multiple class action lawsuits.  See Gordon v. Virtmundo, Inc., 575 F.3d 1040, 1056 (9th Cir. 2009) (finding that plaintiff’s status as a “professional plaintiff” “should not itself undermine one’s ability to seek redress for injuries suffered”). 

There is, however, a way to defend those situations where a person goes looking to file a lawsuit.  The common law principle that “no wrong is done to one who consents” provides a means to defeat the serial plaintiff’s claim.  Beyond Systems, 777 F.3d at 718.  Because consumer protection claims are tort claims and common law principles apply to such claims, the consent to injury principle provides a response to the serial plaintiff that goes looking for a cause of action.  The consent to injury principle focuses on the serial plaintiff’s conduct, in contrast to defenses which focus on and seek to mitigate the defendant’s conduct.  Shifting the focus to the plaintiff’s actions is essential when responding to a serial class action plaintiff.  

The doctrine volenti non fit injuria, which means “to a willing person it is not a wrong,” has been applied where a plaintiff creates the circumstances that lead to the alleged injury.  For example, the plaintiff in Beyond Systems created web pages with email accounts that were not visible on its website and could only be found by spam crawlers that located emails for spam message sites.  777 F.3d at 714.  Since the plaintiff designed a system specifically to receive spam emails, it could not sue when it received the very spam emails it sought.  Id. at 718 (“the evidence was ‘overwhelming’ that Beyond Systems consented to the harm it claims it suffered.”). 

While each case is different, a case filed by a serial class action plaintiff is vulnerable to challenge on the basis that the plaintiff deliberately generated the cause of action.  A self-created harm or purposeful action that generates injury does not create a legally cognizable harm.  Gordon, 575 F.3d at 1057 (“The fact that Gordon . . . endures no real ISP-type harm . . . demonstrates that he has not been adversely affected by alleged violations of the federal act in any cognizable way.”).  A plaintiff cannot set “a trap” for the defendant, “induce damages,” and then seek to recover.  Lopez Lopez v. Aran, 894 F.2d 16, 20 (1st Cir. 1990).

The consent to injury doctrine provides a response to a serial class action plaintiff.  The doctrine focuses on the reason why the plaintiff filed the action and the circumstances that led to the injury become the focus, rather than the defendant’s conduct.  If the class plaintiff created the injury, the action is subject to dismissal.

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