TCPA QUICK HITTER: Court Orders Second Class Action Against Direct Energy to New Venue–And the Rationale is Interesting

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Quick one for you this AM TCPAWorld.

Home field advantage can often be a REAL advantage in TCPAWorld. Well here’s a good tool to keep in mind to leverage a transfer when you get sued outside of your home state.

In Newman v. Direct Energy, 2023 WL 2914788 (D. Md. April 12, 2023), a court granted a Defendant’s motion to transfer venue on a TCPA class action noting uncertainty over personal jurisdiction.

The Defendant had previously been sued by the same law firm in a different class action. Apparently just days after the Court refused to certify the TCPA suit in that action, counsel filed a TCPA second case–this time in a different jurisdiction and with a slightly different class definition.

While this conduct may seem ridiculous–and it is–that’s not what drove the Court’s decision here.

The Defendant moved to transfer venue to have the second case heard in the same district as the first case but the Court noted it was NOT transferring the case because of the earlier case.

Instead, the Court noted that following the Supreme Court’s Bristol Myers Squibb ruling it has been a little unclear whether out-of-state class members can assert TCPA claims against a defendant outside of the defendant’s home jurisdiction. The Newman court found it is “uncertain” whether jurisdiction exists over non-Maryland claimants since DE was not headquartered in Maryland:

[T]his Court’s ability to exercise personal jurisdiction over claims against Direct Energy by unnamed, non-Maryland-based class members is uncertain.

While very few cases have suggested they cannot, Newman is interesting for determining the controversy on the issue alone is sufficient to justify a transfer to the Defendant’s home venue.

Keep this nifty little ruling in mind folks. Chat soon.

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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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