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District Court upholds $925 million TCPA jury verdict against direct sales company

Courts TCPA Robocalls Class Action FCC

Courts

On August 21, the U.S. District Court for the District of Oregon upheld a $925 million jury verdict against a direct sales company in a TCPA class action lawsuit, denying the company’s motion to decertify the class. According to the opinion, the named plaintiff brought the 2015 class action lawsuit alleging the company violated the TCPA by calling consumers using an artificial or prerecorded voice without their consent. In April 2019, a jury concluded that a total of 1,850,436 calls were made using an artificial or prerecorded voice to either cell phones or landlines. However, in June 2019, the FCC granted a request made by the company in September 2017 for a retroactive waiver of the agency’s 2012 new written consent requirements for telemarketing robocalls, but only as it applied to “calls for which the petitioner had obtained some form of written consent.” Based on the newly-obtained waiver from the FCC, the company moved to decertify the class arguing that, among other things, (i) the named plaintiff lacked standing, and (ii) consent is now an individualized issue that “predominates” over the class issues. The court rejected these arguments, concluding that the company waived the affirmative defense of consent by not raising the defense earlier in the litigation when it knew its FCC waiver was pending. Specifically, the court reasoned that the failure to raise the issue “given the likelihood that the FCC would grant its waiver petition was unreasonable.” The court also rejected the company’s predominance arguments, concluding that whether the calls were made to a landline or cellphone is irrelevant as TCPA liability “attaches to any call made [to] either” type. The court concluded that class certification was proper, upholding the jury’s verdict.

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