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By Jimmy H. Koo
Aug. 10 — DirecTV LLC must face an individual plaintiff's lawsuit alleging that the company called his mobile phone without consent using an automated or prerecorded voice ( Swetra v. DirecTV, LLC , 2016 BL 257323, D.N.J., No. Civil No 15-8761 (RBK/AMD), 8/9/16 ).
Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey said that DirecTV can't argue in a related class action that Telephone Consumer Protection claims against it shouldn't be granted class certification and then argue that the plaintiff in this case is a part of the proposed class and therefore can't allege individual claims.
Companies facing related class and individual TCPA lawsuits should be careful to coordinate legal strategy to take into account the status of class certification in those suits. DirecTV was represented by different law firms in the class action and the individual suit.
According to plaintiff Gregory Swetra, throughout 2015, DirecTV called his mobile phone numerous times in reference to an account of a third party. Swetra never had an account with DirecTV and never consented to receiving these phone calls. Swetra filed his complaint Dec. 19, 2015, seeking damages and injunctive relief.
In November 2012, a woman named Jenny Brown joined a putative class action in a federal district court in Missouri, alleging violations of the TCPA, 47 U.S.C. §227, against various defendants, the court said. Brown's individual and class claims were severed from those of her co-plaintiff and she filed an amended class complaint in August 2013, naming DirecTV.
DirecTV moved to dismiss Swetra's lawsuit, arguing that pursuant to the “first-to-file” rule, it should be dismissed, transferred or stayed. The first-to-file rule provides that in all cases of federal concurrent jurisdiction, the court that first deals with the subject matter must decide it. DirecTV argued that the proposed class in the Brown class action includes plaintiff Swetra, and therefore, Swetra can't pursue his individual claims. The plaintiff argued that without a certified class in the Brown case, DirecTV's arguments are premature.
The court held that even if the class were certified in the Brown action, plaintiff Swetra's claims wouldn't necessarily fall within the class.
The proposed class in the Brown case involves claims related to debt collection calls and excludes claims related to telemarketing calls. The court found that it is improper for it to “assume that plaintiff received debt-collection calls—a requirement to be a member of the proposed class in the Brown action—when Plaintiff does not assert that the calls he received were related to a debt, and does not even attempt to characterize the types of calls he received.”
DirecTV argued in the Brown case that a class action is “unworkable” and now, it is arguing that Swetra is part of the proposed class in the Brown case, even though Swetra may not actually be in the proposed class, the court said. “This is improper, and cannot be,” the court said, concluding that the first-filed rule doesn't apply.
Glapion Law Firm represents Swetra. Day Pitney represents DirecTV.
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Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Swetra_v_DirecTV_LLC_No_Civil_No_158761_RBKAMD_2016_BL_257323_DNJ.
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