CLARKSBURG, W.Va. (Legal Newsline) – Two defendants in a multidistrict litigation proceeding involving the Telephone Consumer Protection Act have won summary judgment, dismissing them from an MDL containing 30 cases.
The lawsuits sought to hold UTC Fire & Security Americas and Honeywell vicariously liable for calls made by other companies that were attempting to sell home monitoring systems made by UTC and Honeywell.
On Dec. 22 in the U.S. District Court for the Northern District of West Virginia, Judge John Preston Bailey wrote that there was no evidence that UTC or Honeywell “turned a blind eye” when they learned of improper and illegal telephone calls.
“This court also does not believe that the plaintiffs should receive additional time to conduct discovery,” Bailey wrote. “It would appear that the plaintiffs have been dilatory in failing to pursue the further deposition of UTC they now claim they need.”
Bailey wrote that the plaintiffs have made no attempt to reschedule an additional deposition they deemed necessary, despite having more than three months to do so after the stay was lifted in June.
“Thus, plaintiffs’ own actions show that the deposition was not and is not critical, particularly when they fail to articulate any evidence that would be sought that could create a genuine issue of material fact,” his order states.
The MDL alleges that authorized dealers like ISI and VMS call consumers and pitch a security system package that consists of a “free” alarm system and a multi-year home security monitoring contract with monthly payments.
Monitronics pays the dealer for each monitoring contract and retains a security interest in the dealer’s assets to protect against unpaid charges by consumers.
The authorized dealer pays Honeywell or UTC a negotiated amount for each home security “kit.” The dealers pocket the difference between the revenue from Monitronics and the amount they pay for the kits, according to the order.
“In evaluating these arguments, two things must be kept in mind. First, while inperson telemarketing calls may be harassing to the consumer, they do not violate the TCPA,” the order states. “It is only when the calls are ‘robo-calls’ or are made to persons on the do-not- call list that the calls violate the Act.
Accordingly, assisting a party in setting up telemarketing centers or providing scripts for in-person calls is not evidence of agency.”
Bailey dismissed UTC and Honeywell from the litigation and granted their motions for summary judgment.
U.S. District Court for the Northern District of West Virginia case number: 5:11-cv-00090