Defendants in class action lawsuits sometimes try to avoid class certification by claiming it would be too difficult to identify and find all the potential class members. But just because something is hard doesn’t mean it’s impossible or not worth doing.
GE Capital Retail Bank is the latest corporation to use this excuse in an attempt to avoid a class action lawsuit. The bank is accused of violating the federal Telephone Consumer Protection Act (TCPA) by allegedly using an autodialer to send prerecorded debt collection messages to cellphone users who weren’t even customers of the bank.
The TCPA was enacted when cell phones became widely used and cell phone owners were made to pay for the calls they received as well as the calls they made. In order to protect users from companies calling current and potential customers with promotional information, the TCPA made it illegal for companies to use autodialers to contact anyone who had not given their express permission to be called on their cell phone.
Richard Springer, the lead plaintiff in the class action lawsuit, alleges he never gave GE Capital his cell phone number, but that he did apply for a Wal-Mart credit card around the time he started receiving automated calls from the bank. The credit card application could have played a part in the bank acquiring Springer’s cell phone number, but it does not constitute permission to be contacted by the bank under the TCPA.
GE Capital tried to avoid class certification by claiming it would be too difficult to identify the class members. It argued the “wrong number” search term wouldn’t get them anywhere because many people try to avoid debt collection calls by claiming the dialer called the wrong number.
Judge John A. Houston was not convinced by that argument, pointing out that class members could be identified by going through GE Capitals’ business records and potential class members could report whether they received prerecorded calls from the bank.
GE also attempted to avoid class certification by claiming the new definition of the class in the motion to certify was different from the definition in the most recent amendment of the complaint. The judge didn’t go for that argument either, saying the definition included in the motion to certify was merely “a narrower version” of the definition presented in the amended complaint.
The lawsuit was filed in August 2012 in Southern California and Judge Houston recently certified the class. The class includes everyone who received at least two calls from GE Capital using an autodialer or prerecorded voice message between August 22, 2008 and August 22, 2012. Of GE Capital’s 340 million account holders, the judge determined at least 40 can reasonably be identified, which is large enough to meet the numerosity requirement for class certification.
Lawsuits usually seek injunctive relief (a court order for the defendant to stop their illegal behavior), statutory damages, an depending on the nature of the violation triple damages. The current class action lawsuit against GE Capital sought both compensation for damages and injunctive relief, but the judge refused to certify a class seeking injunctive relief, since GE Capital insists any wrongdoing was unintentional.
Defendants in class action lawsuits sometimes try to avoid class certification by claiming it would be too difficult to identify and find all the potential class members. But just because something is hard doesn’t mean it’s impossible or not worth doing.
GE Capital Retail Bank is the latest corporation to use this excuse in an attempt to avoid a class action lawsuit. The bank is accused of violating the federal Telephone Consumer Protection Act (TCPA) by allegedly using an autodialer to send prerecorded debt collection messages to cellphone users who weren’t even customers of the bank.
The TCPA was enacted when cell phones became widely used and cell phone owners were made to pay for the calls they received as well as the calls they made. In order to protect users from companies calling current and potential customers with promotional information, the TCPA made it illegal for companies to use autodialers to contact anyone who had not given their express permission to be called on their cell phone.
Richard Springer, the lead plaintiff in the class action lawsuit, alleges he never gave GE Capital his cell phone number, but that he did apply for a Wal-Mart credit card around the time he started receiving automated calls from the bank. The credit card application could have played a part in the bank acquiring Springer’s cell phone number, but it does not constitute permission to be contacted by the bank under the TCPA.
GE Capital tried to avoid class certification by claiming it would be too difficult to identify the class members. It argued the “wrong number” search term wouldn’t get them anywhere because many people try to avoid debt collection calls by claiming the dialer called the wrong number.
Judge John A. Houston was not convinced by that argument, pointing out that class members could be identified by going through GE Capitals’ business records and potential class members could report whether they received prerecorded calls from the bank.
GE also attempted to avoid class certification by claiming the new definition of the class in the motion to certify was different from the definition in the most recent amendment of the complaint. The judge didn’t go for that argument either, saying the definition included in the motion to certify was merely “a narrower version” of the definition presented in the amended complaint.
The lawsuit was filed in August 2012 in Southern California and Judge Houston recently certified the class. The class includes everyone who received at least two calls from GE Capital using an autodialer or prerecorded voice message between August 22, 2008 and August 22, 2012. Of GE Capital’s 340 million account holders, the judge determined at least 40 can reasonably be identified, which is large enough to meet the numerosity requirement for class certification.
Lawsuits usually seek compensation for damages (in this case, the cost of the phone call), injunctive relief (a court order for the defendant to stop their illegal behavior), and sometimes statutory damages, depending on the violation. The current class action lawsuit against GE Capital sought both compensation for damages and injunctive relief, but the judge refused to certify a class seeking injunctive relief, since GE Capital insists any wrongdoing was unintentional.Do you have a cell phone or telephone number? Are you getting unsolicited marketing texts or unwanted collection or marketing calls for strangers? Unless you gave express permission, these texts and/or calls may give rise to violations ofe the Telephone Consumer Protection Act of 1991 and you may be entitled to relief of $500-$1500 per text message or telephone call. This is true even if the previous owner of the cell telephone number gave permission. What should you do? You should save copies of all the offending texts and voicemails, document the identity of the sender (i.e. which vendor, collection agency, etc.) and contact the attorneys at Nationwide Consumer Rights for a free evaluation of your potential claims. You can call us at our toll free number 630-333-0333 or contact us online. One of our Chicago and Naperville area TCPA lawyers can help protect your privacy rights.