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"Project Runway" TCPA Suit Loses Second Circuit Appeal

Many people dislike receiving automated phone calls, regarding them as a waste of their time or an invasion of their privacy. The Telephone Consumer Protection Act ("TCPA") helps protect consumers from such unwarranted solicitation.

In 2013, Mark Leyse ("Leyse") filed a putative class action against Lifetime Entertainment Services LLC ("Lifetime") for allegedly violating the TCPA. According to Leyse's complaint, in 2009, consumers were being solicited by robocalls to promote Lifetime's TV show, "Project Runway." At the time, Lifetime used a vendor, OnCall, to facilitate the automated messages. OnCall has since gone out of business and never gave call records to Lifetime, which has made it impossible for Lifetime to retrieve those records. Consequently, Judge Alvin K. Hellerstein of the Southern District of New York denied class certification in the case, on the grounds that the class would not be ascertainable because it would not be possible to determine the eligibility of class members solely based on their affidavits.

After denying the class, Judge Hellerstein granted Lifetime's motion to enter judgment on behalf of Leyse for $1,503 in damages, with an additional $400 for litigation costs.

Leyse appealed Judge Hellerstein's decision to the Second Circuit based on Campbell-Ewald Co. v. Gomez, 577 U.S. _ (2016), which held that companies cannot avoid class action claims by making an offer of full relief to the named plaintiffs. He also purported that allowing the decision to stand effectively rewards Lifetime for failing to keep call records. Lifetime argued that Leyse lacked standing, did not suffer injury, and the class was unascertainable because self-identifying class members would be unreliable based on the length of the message and how long it has been since the calls were made.

The Second Circuit rejected Leyse's appeal, stating that Campbell-Ewald Co. only applied to unaccepted settlement offers. Furthermore, the decision recognized that a list of class members is not always necessary for ascertainability, but that Leyse did not provide a sufficiently reliable method for identifying the proposed class.

The legal team at SFMS has significant experience litigating class action matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

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Daniels, Melissa. "2nd Circ. Won't Give New Life to 'Project Runway' TCPA Suit." Law360. Last modified on February 15, 2017.

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