Telephone Consumer Protection Act litigators Sarah Zielinski, Laura Lange, and Shawna English bring us an update on the role the Supreme Court’s decision in Spokeo, Inc. v. Robins (previously covered here) played in the recent dismissal of a TCPA case in California federal district court for lack of standing.  We’ll continue to monitor developments in the months to come.… Continue Reading

Historically, courts have grudgingly accepted the professional plaintiff in class action practice. As Judge Easterbrook of the Seventh Circuit once said, in the context of a FCRA class action, the word professional “implies experience, if not expertise.” One law student note offered one possible strategy for arguing that professional plaintiffs are inadequate class representatives: focus on their relationship with class counsel.

In Donaca v. Dish Network, LLC, No. 11-cv-02910-RBJ-KLM, 2014 U.S. Dist. LEXIS 19740 (D. Colo. Feb. 18, 2014), the District of Colorado offers another possible argument.  Donaca involved alleged robocalls made in violation of the TCPAContinue Reading

In Labou v. Cellco Partnership, No. 2:13-cv-00844-MCE-EFB, 2014 U.S. Dist. LEXIS 26974 (E.D. Cal. Mar. 3, 2014), the named plaintiff sued cell phone company Verizon. She alleged that Verizon had used an automatic dialer to call her cell phone in an attempt to get her former brother-in-law to pay his cell phone bill, a practice that allegedly violated the Telephone Consumer Protection Act (TCPA). And she sought to certify a class of everyone else Verizon had contacted with an automatic dialer.

There was a twist: the TCPA does not prohibit collection calls so long as the recipient is not … Continue Reading

 It’s a tale as old as the Telephone Consumer Protection Act ("TCPA"): defendant Janssen Pharmaceuticals sent out a fax reporting on the reclassification of its drug Levaquin for insurance purposes. The plaintiff sued it for violating the TCPA, claiming the fax was an advertisement; Janssen responded that the content of the fax was informational. It won a motion to dismiss, but the court allowed the plaintiff to file an amended complaint.

At that point, Janssen moved the court to bifurcate discovery. But where the typical motion to bifurcate asks for merits discovery after class-related discovery, Janssen asked for Continue Reading

Paul Karlsgodt (of the longstanding and outstanding Class Action Blawg) has published an article with the University of Denver Law Review’s Online Edition: Statutory Penalties and Class Actions: Social Justice or Legalized Extortion? Statutory Penalties is an excellent introduction to the problem of defending class actions based on statutory violations, and Karlsgodt’s focus on privacy litigation is a welcome one.

Among the most useful parts of his article, Karlsgodt provides a handy summary of the "annihilation argument" and how it’s currently received by the courts.

One argument raised in early class actions involving potentially annihilating statutory damages liability

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This term, the Supreme Court will review several class action cases. In one of those, Genesis HealthCare Corp. v. Symczyk (technically, an FLSA collective action, but a ruling either way will likely have wider significance) it will decide whether a defendant can moot a class action by offering full relief to a class representative. The case has received a lot of attention, in no small part because plaintiffs are worried about the practice of "picking off" named plaintiffs. On the other side, defendants would like to preserve one of the best tools they have for avoiding nuisance suits.

Last … Continue Reading

Like many cell-phone users, Jerome Damasco received an an unsolicited text message on his phone. Unlike many cell-phone users, he decided to make a federal case of it. So he filed a class action in federal court, alleging that Clearwire (the advertiser) had violated the Telephone Consumer Protection Act.

Faced with the complaint, Clearwire offered Damasco the full damages he sought as an individual. (It also offered to make the same payment to ten other unnamed individuals, suggesting that this may have been a technical glitch rather than a knowing TCPA violation.) It warned Damasco that it considered this … Continue Reading

Regular readers know that I usually average two posts a week here, discussing a case on Tuesday, and offering a think piece on Thursday. But a case came down the other day that justifies switching up the schedule. The case is Creative Montessori Learning Centers v. Ashford Gear LLC, and the issue is under what circumstances a court may find class counsel inadequate to represent a class.

Creative Montessori is a Telephone Consumer Protection Act case; the TCPA prohibits the sending of "junk faxes" or "blast faxes" to recipients without their consent. Because it allows for damages of $500 … Continue Reading