Wed, 03/22/2017 - 08:37
Del Valle v. Global Exchange Vacation Club. TCPA class action lawsuits are an increasingly attractive target for vexatious litigators, thanks to a perfect storm of unclear and increasingly complex TCPA compliance laws and maximum fines of up to $16,000 per violation. In this article, we examine a recent TCPA lawsuit to demonstrate the legal process for evaluating whether a case should move forward with class action status and touch on some simple things you can do to prevent cases like this before you begin your campaigns.
Before You (Auto) Dial
As always, the best way to combat potential TCPA compliance litigation is to have a preventative strategy that minimizes the risk of violations and keeps your business out of the courts. We recommend:
- Scrub data for known litigants. Using services like Litigator Scrub®, we can now identify known litigants and serial plaintiffs and remove them from your data before you launch an inbound or outbound campaign.
- Know which type of phone line you’re calling and what type of consent is needed to do so. You can use Wireless ID to identify wireless phone numbers before initiating calls using an auto dialer or pre-recorded messages to communicate your marketing presentation.
- Document everything to help establish a Safe Harbor defense. Poor record-keeping or failure to establish performance data reporting mechanisms, even if using a third-party vendor, will not let you off the hook.
When does a TCPA lawsuit become a Class Action?
Del Valle v. Global Exchange Vacation Club is an example of the typical cases brought before the courts. Representing the Plaintiff in the California court is John M. Bickford. He is a class action attorney with the Parris Law Firm who specializes in complex consumer class actions. Representing the Defendant is Joseph Ehrlich of Losch and Ehrlich who has experience in cases involving timeshares.
Michele Del Valle filed a motion on December 8, 2016 seeking class action certification for TCPA violations against Global Exchange Vacation Club (GEVC). She claimed that GEVC contracted Intervoice Technologies (IVT) and Marketing Solutions International (MSI) to market timeshares. In their role, the telemarketers dialed Ms. Del Valle’s cellphone using an automatic telephone dialing system (ATDS), without first obtaining expressed consent. As a class action, the lawsuit would include everyone contacted by IVT and MSI for timeshare offers from September 15, 2010 to the present.
RULE OF LAW
The role of the court in this case is to determine if Ms. Del Valle’s lawsuit meets the standards for certification as a class action. To do this, the court used specific criteria to evaluate the merits of her claims and the potential commonalities shared with those who would be included in the Plaintiff’s lawsuit.
In order to move forward as a class action, Ms. Del Valle’s attorney must prove the following four prerequisites:
1. Do the Numbers Justify Class Status?
The Plaintiff (Ms. Del Valle) must prove that a large number of people share the same claims of TCPA violations against GEVC. To meet this standard there must be at least forty members in the class.
2. Are the Claims and Defenses Typical of All Class Members?
The Plaintiff must show that her claims against GEVC are similar to those she seeks to include in her class action lawsuit.
3. Can the Plaintiff’s Representation Protect the Interest of the Class Members?
The Plaintiff’s attorney (John M. Bickford) must show that he is competent to represent the members of the class action.
4. Are the Issues of Law Common to All Class Members?
The Plaintiff must demonstrate that all members involved in the class action share the same legal issues and that a court ruling would result in the same legal remedies had the cases been tried individually.
Both sides presented their arguments in response to the four prerequisites that determine a class action lawsuit. The following summarizes their positions on each point followed by the court’s response.
Do the Numbers Justify Class Status?
The Plaintiff presented evidence that as of May 18, 2015, over 111,000 individuals contacted by IVT and MSI had asked not to be called.
The Defendant countered by stating that in order to prove whether a call from IVT or MSI was related to Ms. Valle’s claim, they’d need to contact every person they’d called in order for them to testify to the content of those calls. They also requested that class certification be denied because the telemarketers did not properly maintain records of the calls.
Are the Claims and Defenses Typical of All Class Members?
Ms. Del Valle asserted that her claims are typical because IVT and MSI used an ATDS to dial her cellphone, as well as those in the proposed class, without prior expressed consent.
The Defendant argued that Ms. Del Valle is NOT typical of the class she wants to represent. They claimed IVT and MSI conducted telemarketing calls on behalf of other clients, as well, who also sold timeshares. Additionally, Ms. Del Valle, in earlier testimony, could not recall whether she ever received a call about a GEVC timeshare or prove that she attended one of their presentations as she had claimed in her testimony.
Can the Plaintiff’s Representation Protect the Interest of the Class Members?
Both parties agreed that the Plaintiffs’ counsel, John M. Bickford, is an experienced class action litigator who is certified as a class counsel in numerous class actions.
The Defendant added that they continued to doubt Ms. Del Valle’s credibility because she had stated that she never consented to receive any calls, but testified that she had allowed her brother to sign up for a giveaway using one of her cellphone numbers. They also accused her of losing or destroying evidence that could have proven which timeshare presentation she had attended.
Are the Issues of Law Common to All Class Members?
The court sought to know if shared legal issues exist between Ms. Del Valle’s case and those of the proposed members of the class that would result in a similar legal remedy.
The Defendant argued that it is unavoidable that each individual class member testify, because they’d need to provide evidence that they answered the phone, listened to the caller’s presentation, and had some belief that the calls originated with GEVC.
THE COURT’S DECISION
The court concluded that the proposed class contains at least forty members and rejected the Defendant’s argument that they were unable obtain call records from IVT and MSI. They pointed out that the Defendants’ poor record-keeping or failure to establish performance data reporting mechanisms with their third-party vendors could not defeat a class certification.
The Court agreed that Ms. Valle had not sufficiently demonstrated that she is a member of the proposed class. They stressed that it was critical to show the link between the GEVC timeshare calls received by Ms. Del Valle and the individuals in the proposed class.
The court found that because Ms. Del Valle may not be a member of the class she purports to represent that, as a result, the Plaintiff is not an adequate representative.
The final decision from the California court was that Ms. Del Valle could not prove she was a member of a class, therefore, class certification was denied, but Ms. Del Valle could still pursue her claims independent of being a member of a class action.
WHERE DO WE GO FROM HERE?
Even though this lawsuit did not gain court approval to move forward as a class action, the plaintiff can still pursue their compliant. The court costs to put up a strong defense still racked up expenses in the tens of thousands and carried the stressful risk of costing millions with an adverse judgement.
Again, the best way to fight against potential TCPA compliance litigation is to implement best practices before you begin your campaigns to minimize the risk of violation. With the solutions available today, an hour of data processing could spare your business years of legal expenses and the negative publicity that follows TCPA class actions.
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