TCPAWorld After Death: Certified TCPA Class Action Lives On Despite Passing of Class Representative

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So here’s a quick “litigation from beyond the grave” story for Halloween week.

A class action was certified against a company selling solar products back in 2017.

Apparently the company used a ViciDial predictive dialer to make 897,534 calls to 220,007 different cell phone numbers.  All of these calls were made without consent.

The class representative was looking at a great case (about ~$500,000,000.00 in damages) until he died in 2019, making it tough to pursue the litigation.

His lawyers, however, sought to substitute class representatives. And in Estate of O’Shea v. Am. Solar Sols., Inc., Case No.: 14cv894-L-RBB, 2021 U.S. Dist. LEXIS 199171 (S.D. Cal.  October 15, 2021) the Court approved his wife to take over as the new class representative.

While some courts have concluded that a TCPA case expires with the person bringing it, the O’Shea court concluded that the TCPA is remedial in nature–notwithstanding the plainly punitive nature of the statutory damages–and that TCPA claims, therefore, survive the death of the called party.

Notably, the case is in the midst of a class action settlement proceeding (apparently on very favorable terms) and the motion to substitute was a joint motion. As a result the Court rather readily found the new Plaintiff also met the typicality and adequacy requirements. (Not sure that would happen on an opposed motion.)

So there you go, another court finds that TCPA cases live on after the demise of the Plaintiff.

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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