June 25, 2022

Volume XII, Number 176

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NO “BACK DOOR”: Court Denies Class Counsel’s Efforts to Potentially Solicit Class Members via Notification of Appellate Rights

Some ideas are just too clever by half.

So the saga of the Cordoba case against DirecTV is really one of greatest impact to TCPAWorld. For the uninitiated, the case as originally certified in a MASSIVE certification order holding that, in essence, every marketing call DirecTV ever made violated the TCPA because it lacked an internal DNC policy.

Needless to say DirecTV was facing enormous exposure on the claim.

On appeal, however, the Eleventh Circuit ruled that although there was a private right of action to enforce the internal DNC regulation–the primary question presented–the class representative and other class members who had not actually asked for calls to stop were found to lack Article III standing–they could not have been harmed by DirecTV’s failure to have an internal DNC list.

On remand, the Plaintiff’s lawyers tried to make lemonade out of lemons and requested the Court to allow it to use a confidential production of class data–again, never a good idea to produce this stuff precertification–to contact certain class members to “notify” them of their right to sue DirecTV in arbitration on a claim under a different federal statute.

The Court saw this for what it was–an effort by class counsel to use confidential data to solicit new plaintiffs to sue the defendant. (Every defendant’s worse nightmare, BTW.) So it denied the plaintiff’s request.

Remarkably, however, class counsel apparently then decided that it would go ahead and notify the class members anyway–not to advise them they could sue DirecTV but to advise, instead, of their individual right to appeal the court’s order denying notice.

Huh?

DirecTV wisely rushed to court and advised what class counsel was up to and the Court was not amused:

If this Court permitted
Plaintiffs’ counsel to notify all 9,100 individuals of their
right to appeal the January 7 Order, which disallowed a
modification of the Protective Order for the express
purpose of notifying the 9,100 individuals of their right to
arbitrate their STELA claims, the Court would, in effect, be reversing its January 7 Order and allowing Plaintiffs’
counsel to get through the back door what they are
prohibited of getting through the front door.

The Court goes on to explain that the case is over and the Plaintiff’s counsel should cut their losses and move on:

In football parlance,
Plaintiffs’ counsel’s most recent attempt at a “Hail Mary”
fails because the referees have declared the game over,
except as to any remaining arbitration proceedings that
may be initiated. Plaintiffs’ counsel would have this
Court create precedent where none exists, so that
litigants who are unsuccessful in maintaining class
actions still have the right to use otherwise confidential
information obtained in the putative class litigation to, in
effect, solicit individual members of the failed class for
individual representation. This Court refuses to create
such a precedent.

So there you go, TCPAWorld produces another incredibly interesting story. Defendants who have their data produced in class litigation should keep this case in mind–it is entirely inappropriate for plaintiff’s lawyers to use confidential data produced in one case to solicit new plaintiffs or set up future claims.

Happy Wednesday.

© 2022 Troutman FirmNational Law Review, Volume XII, Number 61
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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