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Tuesday, August 20, 2019

Class action over disputed text messages continues despite no messages

By Dee Thompson | Dec 22, 2016

WEST PALM BEACH, Fla. (Legal Newsline) -- A Florida class action case that has been ongoing since 2012 continues, despite the plaintiff’s deletion of disputed text messages on his phone.

Plaintiff Brian Keim’s lawsuit alleges the promotional text messages he received in 2011 from Pizza Hut violated the Telephone Consumer Protection Act (TCPA).

Keim filed the suit in U.S. District Court for the Southern District of Florida-Palm Beach Division in May 2012, alleging he never wanted to receive promotional text messages. He seeks $500 per unwanted text message from Pizza Hut and its franchisees.

However, Keim recently admitted he has since deleted the promotional text message in dispute. He also admitted he deleted texts from a friend that showed he had wanted to receive the promotional texts.

So why is the lawsuit still active if the text messages in dispute have been deleted?

S. Stewart Haskins II, a partner with King & Spalding who has litigated class action lawsuits for years, told Legal Newsline: “I think the reason is because, according to the court, there was a possibility the texts were deleted before the plaintiff had anticipated litigation. 

"The court at least found that there was insufficient evidence the plaintiff had the text messages at the time that he anticipated bringing the lawsuit.”

The case was filed in 2012 but an early offer judgment of $1,500 caused the federal court to dismiss the case. Under the TCPA, the plaintiff only has the right to recover treble damages for each violation and Keim said he only received one unauthorized text message. 

Under Rule 68, the offer of judgment has become a way for some defendants to argue that because there was a fixed amount of damages, if the offer of judgment for that exact amount is rejected then there is no disputed amount -- nothing left for the court to decide -- and therefore the case should be dismissed. 

The plaintiff appealed the dismissal and it reached the U.S. Court of Appeals for the 11th Circuit, which reversed the dismissal and sent it back to the district court.

The defendants never filed answers until early 2016. Now that discovery has been done and plaintiff has been deposed, the defendants have discovered there are no text messages. The friend who urged Keim to sign up for the promotional texts has died and forensic specialists have not been able to recover the texts.

Companies often are held to a high standard of keeping emails, texts and other electronic evidence but this case offers teachable moments for plaintiffs attorneys. 

Haskins said Pizza Hut’s attorneys pressed this matter vigorously because there’s a bit of a double standard. 

“Of course the headline coming out of this case -- rightfully so -- is that so many burdens are placed on a defendant company to preserve their records," he said. "And here’s a plaintiff that did not preserve his records and yet did not get slapped on the wrist.” 

The court’s opinion states in a TCPA action, a prospective plaintiff’s counsel should sequester the contents of a plaintiff’s cell phone at the time litigation is anticipated. That will prevent expensive and time-consuming motions, sanctions and other legal maneuvers.

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U.S. District Court for the Southern District of Florida West Palm Beach Division