TCPAWorld After Death: Certified TCPA Class Action Lives On Despite Passing of Class Representative

Monday, October 25, 2021

So here’s a quick “litigation from beyond the grave” story for Halloween week.

A class action was certified against a company selling solar products back in 2017.

Apparently the company used a ViciDial predictive dialer to make 897,534 calls to 220,007 different cell phone numbers. All of these calls were made without consent.

The class representative was looking at a great case (about ~$500,000,000.00 in damages) until he died in 2019, making it tough to pursue the litigation.

His lawyers, however, sought to substitute class representatives. And in Estate of O’Shea v. Am. Solar Sols., Inc., Case No.: 14cv894-L-RBB, 2021 U.S. Dist. LEXIS 199171 (S.D. Cal. October 15, 2021) the Court approved his wife to take over as the new class representative.

While some courts have concluded that a TCPA case expires with the person bringing it, the O’Shea court concluded that the TCPA is remedial in nature–notwithstanding the plainly punitive nature of the statutory damages–and that TCPA claims, therefore, survive the death of the called party.

Notably, the case is in the midst of a class action settlement proceeding (apparently on very favorable terms) and the motion to substitute was a joint motion. As a result the Court rather readily found the new Plaintiff also met the typicality and adequacy requirements. (Not sure that would happen on an opposed motion.)

So there you go, another court finds that TCPA cases live on after the demise of the Plaintiff.