This article was written by David N. Anthony, Alan D. Wingfield, and Ross Andre, and originally published on the Troutman Sanders LLP Consumer Financial Services Law Monitor. It is republished here with permission.
BrandRep, the defendant in a Telephone Consumer Protection Act (TCPA) putative class action lawsuit pending in the United States District Court for the Central District of California, recently settled putative nationwide class claims on an individual basis, resulting in dismissal of the case. The settlement came on the heels of BrandRep’s assertion of counterclaims that put the plaintiff—and his counsel—back on the defensive.
The plaintiff in the case, Jason Alan, is a recurring TCPA plaintiff, and his counsel, Todd Friedman of the Law Offices of Todd Friedman, has represented hundreds or thousands of plaintiffs in TCPA cases. In June 2016, Alan, represented by Friedman, filed a class action against BrandRep, accusing it of making insurance sales calls to one of his phone numbers in April 2015 using an automated dialer or prerecorded voice and without Alan’s consent, in alleged violation of the TCPA.
In response, BrandRep denied liability but went a step further: it asserted claims back against Alan and against various John Doe entities, later revealed to include Friedman and other attorneys at his firm. BrandRep alleged Alan orchestrated a scheme to generate TCPA lawsuits by registering and publicizing more than 30 separate phone numbers, then suing entities that called those numbers. Essentially, according to BrandRep, Alan created the circumstances leading to TCPA claims and then sought to profit from them. BrandRep alleged that Alan was in collusion with Friedman to generate claims, file “carbon copy” lawsuits, and share recovered fees. Indeed, BrandRep noted that Friedman had filed more than 390 TCPA cases in Los Angeles federal court alone.
Alan and Friedman moved to dismiss BrandRep’s counterclaims, casting them as an effort by BrandRep to scare Alan out of pursuing valid and meritorious causes of action. They derided BrandRep’s allegations as baseless and imagined wrongs. Alan cast himself as a truly aggrieved party with Friedman as counsel willing to fight for consumers’ rights. They described BrandRep’s claims as “frivolous” and evidence that BrandRep had no TCPA compliance, arguing that rather than defending its practices, it was seeking to shift blame and attention away with its claims back at Alan and Friedman. They urged the court to either dismiss or strike the claims.
In November 2016, after vigorous briefing both ways, the Court denied Alan and Friedman’s motion, allowing the claims against them to continue. On March 17, the parties notified the court they had settled all claims on an individual basis.