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June 07, 2019

Mike Daly Comments on Recent Decision Affirming Certification of Do-Not-Call Class

Philadelphia partner Mike Daly was quoted in a Law360 article titled “4th Circuit Ruling Eases Class Certification Path in Telemarketing Rows.”

The Fourth Circuit recently issued a decision in Thomas H. Krakauer v. Dish Network LLC that denied a defendant’s appeal from a $61 million jury verdict. The plaintiffs in the case sought to hold the defendant vicariously liable for telemarketing calls made by one of its authorized dealers to numbers that had been listed on the Do-Not-Call Registry.

Mike and other TCPA litigators predicted that plaintiffs will try to invoke this decision in other cases. Mike explained that “[p]laintiffs will no doubt take out of context the Fourth Circuit’s statement that ‘TCPA claims’ are ‘conducive’ to class treatment.” “But that would be painting with too broad a brush,” Mike explained, because “other species of TCPA claims . . . necessarily turn on inherently individualized questions of consent and revocation of consent, among other things.”

The decision also serves as an important reminder that plaintiffs may try to hold businesses liable for calls that their vendors make. Mike explained that “the Krakauer decision is—as if anyone still needed one—a wake-up call.” He cautioned that business must be “hypervigilant about what they and their vendors are doing. They should not simply rely on contractual provisions disclaiming agency and requiring compliance and indemnification.”

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