INDIANAPOLIS (Legal Newsline) – A telemarketing class action is in year seven and plaintiffs lawyers are now asking for a “do-over,” a company accused of violating federal law is complaining.
“This is not how class actions work,” Credit Protection Association says in a recent filing in Indiana federal court.
“Plaintiff’s flippant proposal on how to proceed is flawed for more reasons than can be addressed in the time given to review and prepare this status report.”
The case was filed in 2013 and was previously stayed while the U.S. Court of Appeals for the Seventh Circuit decided an appeal in another Telephone Consumer Protection Act case.
The decision in Gadelhak v. AT&T in February clarified what qualifies as an “automated telephone dialing system” under the TCPA in the Seventh Circuit. It had the effect of holding that texts sent by Credit Protection Association weren't subject to the TCPA’s statutory penalties of $500 or $1,500 per violation.
Credit Protection Associations was accused of texting plaintiffs who had asked the company to stop. A class was certified, but it has been undone by the Gadelhak decision. It held that the dialing system used by CPA, a list-based dialing system, did not qualify as an ATDS under the law, the plaintiffs say, so they suggest moving forward with an alternative theory.
The new theory to be advanced is CPA is liable for prerecorded voice calls. Plaintiffs say TCPA liability does not require them to be placed by an ATDS.
“Contrary to what Defendants claim, Gadelhak only affects the class’ ability to recover calls made using an ATDS,” plaintiffs lawyers wrote. “(I)t does not affect the class’ ability to recover for calls made using an artificial or prerecorded voice, or change the fact that those claims both exist here and have not yet been addressed.”
There is no “do-over,” they say, just the pursuit of a theory pled in their complaint.
But CPA says discovery over the past six years has been “laser focused” on the class alleging improper texts, not the new class that received prerecorded calls.
“The fact that Plaintiff does not want to proceed on the theory on which the class was certified gives the game away,” CPA wrote.
It will be up to Judge Jane Magnus-Stinson to decide whether to proceed with the voice call allegations.
Previous Legal Newsline coverage of the case showed Keogh Law Firm, the plaintiffs’ lawyers, used a contract that took control away from one of its clients on a possible settlement.
The contract with plaintiff Katherine Lanteri included a stipulation that would have forced her to pay Keogh lawyers their regular hourly rates and expenses incurred on the case if she settled against the firm’s advice before a class was certified.
“If Client abandons the class and settles on an in individual basis against the advice of Attorneys, Client shall be obligated to pay Attorneys their normal hourly rates for the time they expended in the case and shall be obligated to reimburse the Attorneys for all expenses incurred,” the agreement says.
The clause became an issue when CPA challenged the ability of Keogh Law to serve as lead counsel. Lanteri was unaware that she could have been forced to pay hourly fees to the firm, which she assumed was working on a contingency fee.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com