Under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), consumers can recover $500 for every call or text made in violation of the Automatic Telephone Dialing System (“ATDS”) restrictions, and up to $500 for each violation of the National Do-Not-Call Registry (NDNCR) rules and regulations. If the defendant’s conduct is found to be willful or knowing, damages can be trebled to $1,500.
On April 25, 2018, Bill Kenney Law Firm, LLC filed a class action lawsuit against Shark Bar, asserting that Shark Bar had been engaged in unlawful telemarketing practices for years. In December 2018, we teamed up with Edelson P.C.–a plaintiff’s firm with extensive experience in class action and TCPA litigation.
After the filing of plaintiff’s second amended class action complaint, naming Cordish Companies, Inc. (“Cordish”) and Entertainment Consulting International, LLC (“ECI”) as additional defendants, the defendants filed a motion to dismiss the lawsuit, arguing, among other things, that the TCPA is unconstitutional. The Court denied the motion, correctly holding that the unconstitutional portion of the statute–the Government-backed debt exception–should be severed. The Supreme Court of the United States recently did the same in Barr v. Am. Ass’n of Political Consultants, Inc., No. 19-631 (U.S. July 6, 2020). The Supreme Court also recently announced that it will decide what constitutes an ATDS under the TCPA in Facebook v. Duguid, No. 19-511 (U.S.)
On April 27, 2020, the United States District Court for the Western District of Missouri issued a ruling on plaintiff’s motion for class certification, among other motions, in Hand v. Beach Entertainment KC, LLC d/b/a Shark Bar, et al., No. 4:18-cv-668-NKL (W.D. Mo.) While the Court disagreed with our position that Shark Bar used an ATDS, the Court determined that plaintiff’s and the class members’ NDNCR claims were suitable for resolution on a class-wide basis. The Court certified a class consisting of thousands of consumers who received more than one text message in any twelve-month period after their number had been registered on the NDNCR.
During the nearly four-year period asserted in the Complaint, Shark Bar sent over 475,000 text messages to more than 73,000 phone numbers. In his motion for class certification, plaintiff cross-referenced a subset of 11,562 numbers against the NDNCR, resulting in a list of 4,860 individual phone numbers that were registered on the NDNCR prior to receiving a text message–which was more than enough to satisfy the numerosity requirement. In analyzing plaintiff’s motion for class certification, the Court found that plaintiff had standing to assert a claim, that the class was ascertainable, that there were questions of law and fact common to plaintiff and the class, that plaintiff’s claims were typical of those of the class, that plaintiff and his attorneys would fairly and adequately protect the interests of the class, that common questions predominated over individual ones, and that a class action is superior to other methods of adjudication. Ultimately the Court appointed plaintiff J.T. Hand as class representative, and appointed Bill Kenney, Benjamin Richman, Michael Ovca, and Eve-Lynn Rapp as class counsel. Defendants filed a petition for permission to appeal the district court’s certification order to the 8th Circuit Court of Appeals, which was denied just 15 days later. Some of the primary filings are available below.
Orders on Motion to Dismiss, Summary Judgment, Daubert, Class Certification:
- Order Denying Motion to Dismiss
- Order on Cross-Motions for Summary Judgment, Daubert, Class Certification
Petition for Permission to Appeal to the 8th Circuit Court of Appeals:
- Defendants’ Petition for Permission to Appeal
- Plaintiff’s Answer in Opposition to Defendants’ Petition for Permission to Appeal
- Judgment Denying Defendants’ Petition for Permission to Appeal
Plaintiff’s Motion for Class Certification:
- Plaintiff’s Suggestions in Support of Motion for Class Certification
- Defendants’ Suggestions in Opposition to Motion for Class Certification
- Plaintiff’s Reply Suggestions in Support of Motion for Class Certification
Plaintiff’s Motion for Partial Summary Judgment:
- Plaintiff’s Suggestions in Support of Motion for Partial Summary Judgment
- Defendants’ Suggestions in Opposition to Plaintiff’s Motion for Partial Summary Judgment
- Plaintiff’s Reply Suggestions in Support of Motion for Partial Summary Judgment
Defendants’ Motion for Summary Judgment:
- Defendants’ Suggestions in Support of Motion for Summary Judgment
- Plaintiff’s Suggestions in Opposition to Defendant’s Motion for Summary Judgment
- Defendants’ Reply Suggestions in Support of Motion for Summary Judgment
Defendant’s Motion to Exclude the Testimony of Plaintiff’s Expert:
- Defendants’ Suggestions in Support of Daubert Motion
- Plaintiff’s Suggestions in Opposition to Daubert Motion
- Defendants’ Reply Suggestions in Support of Daubert Motion
Complaint, Answer, and Defendants’ Motion to Dismiss:
- Second Amended Class Action Complaint
- Answer and Affirmative Defenses to Second Amended Complaint
- Defendants’ Suggestions in Support of Motion to Dismiss
- Plaintiff’s Suggestions in Opposition to Motion to Dismiss
- Defendants’ Reply Suggestions in Support of Motion to Dismiss
- United States’ Suggestions in Support of the Constitutionality of the TCPA
- Defendants’ Response in Opposition to United States’ Suggestions in Support of the Constitutionality of the TCPA