Federal statutes provide many opportunities for class actions claiming both injunctive relief and money damages on behalf of large groups of individuals. Class action lawsuits of this nature face many hurdles, including most obviously the defendant’s denial of participating in the illegal conduct. A recent example of both the obstacles and efforts taken to evade the obstacles is provided by the amendment of the class action complaint in a case involving the alleged violation of the Telephone Consumer Protection Act (TCPA) by a large registered investment advisor.
The original class action complaint
The original class action complaint was filed by a resident of North Carolina against Fisher Investments, alleging that the defendant violated the TCPA by using phone numbers collected by the Federal Trade Commission on its do-not-call registry. The initial complaint also alleged that Fisher illegally used automated dialing systems to make the calls. The complaint sought certification as a class action on behalf of all persons who had received illegal phone calls.
The putative class and Fisher’s answer
The complaint alleged that the class consisted of persons who had received similar calls from Fisher over the last four years. The number of potential class members was alleged to number in the “several thousands.”
Fisher filed an answer in which it denied the illegal use of automated dialing equipment. In its answer, Fisher alleged that it did not possess and did not use automated dialing systems as alleged in the complaint. The answer also alleged that members of the putative class were already customers of Fisher and that they had voluntarily provided their names and telephone numbers to Fisher. Fisher also claimed that the class action was frivolous.
The amended complaint
The named plaintiff in the class action suit filed an amended complaint that alleged that he never had a business relationship with fisher. He further alleged that Fisher failed to abide by his numerous drop-out requests and that Fisher had called him approximately 15 times without his consent. The complaint is seeking injunctive relieve and damages for each member. The damages include $500 for each negligent call and $1500 for each intentional or willful do-not-call violation.
This case is very complex, and it is not likely to be resolved any time soon. Anyone who is bothered by unwanted solicitation calls and feels like the caller is violating the law may wish to consult an experienced class action attorney for advice concerning the likelihood of recovering damages in a class action law suit.