Ft. Lauderdale, Fla., December 8, 2020 – Greenspoon Marder LLP, representing USHEALTH Advisors, LLC and USHEALTH Group, Inc., successfully defeated a bid for class certification in the United States District Court for the Northern District of Texas by convincing the Court that the Plaintiff, Aaron Hirsch, failed to satisfy the requirements of commonality, typicality, or predominance under Federal Rule of Civil Procedure 23. In a thorough decision that reiterated the requirements for certification of “do-not-call” claims under the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”) and the need for a plaintiff to present evidence, not just assurances, in satisfaction of those requirements, the Court found Hirsch fell far short, questioned whether the case was “a wise use of the Court’s and the parties’ resources,” and likened Hirsch and his counsel to a “fool” who “desires impossibilities.” The order is a testament to the fact that defending against class claims is an art that requires experienced counsel and strategic planning from the inception of a case.
The case, Aaron Hirsch v. USHEALTH Advisors, LLC et al., Case No. 18-cv-245-P, stems from calls that Hirsch drummed up with his attorney, and close friend, as part of a scheme “to profit through the TCPA” in which Hirsch “learned to feign interest to elicit” follow up telephone calls that Hirsch alleges violated the TCPA—calls he would then file suit over when his friend/attorney deemed it appropriate. Hirsch sought to certify a national do-not-call and internal do-not-call class, as well as a duplicate Maryland subclass.
A key strategy in discovery and a theme displayed throughout the litigation was to show that a TCPA plaintiff should not be permitted to create the circumstances of his lawsuit while at the same time claiming to be a typical class member. Unlike the class member who is alleged to be the unwilling and unexpected recipient of an unwanted telephone call, a plaintiff like Hirsch would never have been contacted but for his request. While many defendants have tried and failed to convince courts that “professional” plaintiffs lack standing to bring TCPA claims, the Greenspoon Marder team focused on a different approach with professional plaintiffs like Hirsch—they’re atypical of the class they seek to represent. And the Court agreed, finding “atypical behavior leads to an atypical case” and that Hirsch’s nefarious actions pose a real threat “that absent class members will suffer if their representative is preoccupied with defenses unique to him.” In an area of law that is dominated by professional litigants looking to entrap legitimate businesses, the strategy employed against Hirsch proved to be successful.
The defense also placed an early focus in the litigation on highlighting for the court the many individualized issues that ultimately defeated class certification. First, through documents, testimony, and declarations, the defense submitted substantial evidence that consent-based lead generation was the norm. “Since the phone numbers originated from multiple sources, consent could not be proven by general evidence—each number had its own story,” the Court concluded.
Second, in order to have a claim, a class member needs to be a “residential telephone subscriber.” The Court agreed that such a determination is a fact intensive inquiry not suited for a do-not-call class trial. Hirsch was a cautionary example. He uses his cell for his businesses, publishing it in advertisements and on his website, and deducted his cell phone costs on his tax returns as a business expense. Greenspoon Marder also employed the help of an expert to prove that Hirsch was not alone because a significant amount of putative class members used their telephone numbers in connection with a business and Hirsch’s proposed alternative was unreliable, so the issue would be central in any determination on the merits. The Court agreed, finding that “each [number] must be tested individually . . . resulting in a Herculean task at best.”
Third, the defense successfully argued that whether the Defendants—which did not make the telephone calls—are responsible for the calling party’s actions under agency principles is an individualized issue that is not susceptible to class treatment. The calls forming the basis of the putative class came from countless independent contractors, each with a different relationship, or none at all, to the Defendants. The Court held that “[t]he potential differences in control” and the “potential variety of relationships” “defies class wide resolution.”
The Court’s denial of class certification in Hirsch is a victory for TCPA-compliant businesses. It also highlights the necessity of early planning and proper execution of a class action defense strategy. Defendants in TCPA class actions must attack just as much, if not more, than they defend.
Class Action Defense practice group has successfully defended against hundreds of TCPA class actions. It has defeated multiple class certification motions by employing the strategies used in the Hirsch case. TCPA and other consumer class action lawsuits can bankrupt even the biggest companies, and defending against them is no small feat. Experienced, strategic counsel is a necessity.
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