Fort Lauderdale, FL – February 11, 2019 – A Greenspoon Marder team secured a major victory for client Caribbean Cruise Line, Inc. (“CCL”) on February 8, 2019, in the United States District Court for the Northern District of Illinois, defeating a plaintiff’s bid for class certification in a case claiming violations of the Telephone Consumer Protection Act when the plaintiff received a single text message. Judge John Z. Lee’s 27-page Memorandum Opinion and Order held that CCL’s counsel successfully demonstrated that individualized issues of consent predominate and, when coupled with the plaintiff’s close ties with his lawyers, the case was inappropriate for adjudication as a class action.
The named plaintiff, Richard Gordon, a class action plaintiff’s attorney himself, was unable to overcome the individualized issues of consent that would have predominated any class wide resolution of the case. All text messages had been sent, if at all, by a different business which generated leads through Internet marketing after obtaining express consent. Gordon also failed to establish his adequacy as a class representative. In his Order, Judge Lee noted that Gordon’s “significant business ties” to the proposed class counsel, as well as his close personal ties to one of his attorneys, “cast significant doubt upon his ability to put the interests of absent class members above that of class counsel.”
This case had been put on hold for years while the same attorneys pursued the same claim against CCL for a different plaintiff in New York, which they ultimately dismissed without seeking class certification. As noted by Judge Lee in his opinion, the plaintiff’s attorneys had failed to conduct any discovery from this company in the earlier New York case, despite being warned by the court in that case that “foregoing such discovery could have fatal consequences.”
The Greenspoon Marder team included Richard W. Epstein, Jeffrey A. Backman, and Brian R. Cummings. Mr. Epstein and Mr. Backman are partners in Greenspoon Marder’s Class Action Defense Practice Group and Mr. Cummings is a partner in the firm’s Creditors’ Rights and Commercial Litigation Practice Groups.
“After failing in New York, these same class lawyers tried to get a do-over in Chicago, but the court saw through the plaintiff’s efforts to circumvent the elements of class certification,” said Mr. Backman, lead counsel for CCL in both cases. “This case is and was always about consent – an issue that cannot be resolved on a class wide basis. What’s more, the case was brought by lawyers who maintained business associations and close personal friendships with the named plaintiff: they shared office space, had the same landlord for their offices – the plaintiff’s cousin – they lived in the same area, and sent their kids to the same school. As a result, the court found that the plaintiff was not a proper class representative.”
Judge Lee’s ruling finally brought closure to a series of class actions against CCL arising from this text messaging campaign brought by a small group of plaintiff attorneys, including an unsuccessful effort in 2014 to combine the four cases.
“It’s been almost five years since the original New York law suit was filed. And now, with class certification rejected, this case is about a single text message, a whopping $1,500 claim,” Backman said. “This case is illustrative of the rampant abuses of the class action device in federal courts around the country. This case, and the three others like it, were doomed from the start and should never have been brought in the first place.”
CCL intends to defend Gordon’s individual claims on the merits.
The case is Richard Gordon v. Caribbean Cruise Line, Inc., Case No. 14-cv-5848 (N.D., Ill.).