May 25, 2020

A $450MM Question of Fact: Court Denies Summary Judgment to Plaintiff in Certified TCPA Class Action – The Jury Must Determine Whether Plaintiff’s Expert Methodology is Sound

Yesterday, in O’Shea v. American Solar Solution, Inc., the United States District Court for the Southern District of California handed Defendant American Solar Solution its place in the sun— denying a Plaintiff’s motion for summary judgment in a certified TCPA class action.  

O’Shea involves telemarketing calls to cell phones related to Defendant’s solar energy products and services. The case was certified on April 15, 2014, with the Court finding Plaintiff satisfied the requirements of Federal Rule of Civil Procedure 23(a) and Rule 23(b).  

On December 1, 2017 the Plaintiff moved for summary judgment arguing that there was no dispute as to the number of class members or with respect to the number of calls attempted to each class member using regulated technology. Plaintiff argued that its expert had identified 897,304 total calls to 220,007 unique cell phones and that the class was entitled to recover $500.00 for each of those calls. Thus Plaintiff sought nearly $450MM in statutory damages on behalf of the class.

In addressing the Motion, the Court side-stepped the issue of whether or not the Defendant utilized technology governed by the TCPA and, instead, denied summary judgment on the ground that the methodology proposed by Plaintiff’s expert—the prolific Jeff Hansen— may or may not ultimately be determined sound by the trier of fact. Notably, the Court found that Defendant’s stipulation as to the number of calls and class members Mr. Hansen had identified was just that and no more— Defendant had not stipulated that Mr. Hansen’s counts were right.

While the Defendant narrowly avoided disaster on summary judgment, O’Shea once again re-affirms the incredible stakes facing Defendants in TCPA class litigation. It also underscores the highly-factual nature of expert reports and methodologies purporting to ascertain class members and damages. We’ll keep a close eye on the case as it heads toward trial.

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About this Author

Susan Nikdel, Womble, litigation attorney
Associate

Susan represents clients in commercial and financial services litigation, particularly Telephone Consumer Protection Act (TCPA) cases. She is part of a team that has handled more than 600 TCPA cases, including more than 50 national class actions.

Prior to beginning her legal career, Susan served as a Judicial Extern for the Honorable Theodor C. Albert in the U.S. Bankruptcy Court, Central District of California.  She is a Certified Mediator.

Susan is fluent in Farsi/Persian and conversational in Spanish.

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