Taryn Phaneuf May 5, 2016, 3:00pm


BUFFALO, N.Y. (Legal Newsline) — A New York court has dismissed the lawsuit of a man who died before certification of a class in his claim against a company that allegedly violated the Telephone Consumer Protection Act.

The plaintiff, Mark Hannabury, sued Hilton Grand Vacations over two calls to his cell phone, attempting to sell interests in timeshare properties. Hannabury allegedly was included on the national Do Not Call registry.

TCPA, passed in 1991, restricts telemarketing and the use of automated phone equipment.

Hannabury sought $3,000 in damages. He intended to pursue a class action suit on behalf of others whom the company had called, but he died before moving to certify the class. After his death, his estate asked to substitute itself as the named plaintiff.

The U.S. District Court for the Western District of New York determined the suit doesn’t survive the plaintiff because the claims at issue are primarily penal, not remedial.

“It’s not surprising that the courts decided the damages are penal,” Andrew Van Houter, an associate attorney at Drinker Biddle & Reath in New Jersey, told Legal Newsline. Van Houter writes about TCPA cases for the firm’s blog.

To figure out if a claim is primarily penal or remedial in nature, courts consider three factors: whether the purpose of the claim is to redress individual or public wrongs; whether recovery is for the individual or the public; and whether the recovery is disproportionate to the harm suffered.

In this case, the court determined that TCPA is meant to deter defendants from calling people, which would mean redressing public wrongs. Additionally, the damages requested in the suit (and allowed by TCPA) are disproportionate to the harm suffered by two calls that each lasted less than a minute. Based on those two points, the court determined the claims are penal.

“It is difficult to see how this lawsuit, which is a powerful reaction to two brief phone calls, is anything other than a tool to redress and deter public wrongs,” the court determined, according to court documents.

Van Houter said a unique aspect of this case involves the fate of the class action. Because the class wasn’t certified before his death, the action is dismissed along with the named plaintiff’s suit.

To pursue it now will require starting from the beginning with a new named plaintiff.

“It would be a hurdle to start all over to try and do whatever they’d done up to that point,” Van Houter said.

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