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Well here’s a feel-good story that we could all use right now.
For those of you unfamiliar with the Bad Reyes saga, come gather around and I’ll tell you a tale.
Recall the uncertain days following the big ACA Int’l ruling. There was widespread confusion as to whether or not the D.C. Circuit Court of Appeal had completely set aside earlier FCC guidance on the definition of ATDS or merely rejected a particularly expansive read adopted in 2015. The first case to take a stab at the issue was Marshall v. CBE Grp., Inc., Case No. 2:16-cv-02046-GMN, 2018 WL 1567852 (D. Nev. Mar. 30, 2018) which held—just days after ACA Int’l—that the FCC’s predictive dialer rulings had been completely set aside. Neat. But Marshall was a click to dial case and the determination regarding the applicability of the FCC’s earlier rulings was essentially glorified dicta, which did not ultimately yield the result in the case.
Nonetheless, Marshall was a real shot across the bow for the Plaintiff’s bar and it seemed, perhaps, that the lights had gone out for TCPA predictive dialer cases But then, in May 2018—a dark miracle of sorts. A district court reviewed the D.C. Circuit’s ruling and determined that it had not actually set aside the 2003 and 2008 FCC rulings after all–predictive dialers were still per se subject to the TCPA. It was a first-in-the-nation result that opened the door to further predictive dialer TCPA cases and would bridge the gap until Marks came along five months later. That case, of course, was Reyes v. BCA Fin. Servs., Inc., No.: 1:16-cv-24077-JG, 2018 U.S. Dist. LEXIS 80690 (S.D. Fla. May 14, 2018)—better known as Bad Reyes in TCPAWorld. Remarkably the Court actually entered summary judgment affirmatively against the Defendant concluding that calls had been made using an ATDS.
But Bad Reyes would soon become worse Reyes as the Court saw fit to certify a rare-at-the-time code class consisting of numerous individuals the Defendant’s records demonstrated may have received a call to a “bad number.” Making matters worse, the court had entered the summary judgment ruling pre-certification—even though the certification motion had been filed first—resulting in a waiver of Defendant’s one-way intervention rights and allowing class members to flood into the suit with the primary substantive issue already decided in their favor.
Motions for reconsideration were filed and denied. Petitioners for interlocutory appeal were sought and denied. Things were about as bleak as you could imagine with the Defendant seeking bet-the-company exposure and seemingly no way out.
And then, a unicorn. Ruling on a second motion to stay last July, the Bad Reyes court suddenly decided to await the FCC’s guidance on the definition of ATDS. Yep—just over a year after turning TCPAWorld’s ATDS definition on its head and on the eve of trial proceedings in the certified case, the Court did a u-turn and decided wait for the FCC to declare the proper ATDS definition before proceeding. What a result!
Several months passed without further news until today—a day that seemed so remarkably impossible this time last year— when the Court entered an order (found here Reyes Dismissal) vacating the class certification ruling and summary judgment entered in the case. Instead of pursuing a massive judgment against the Defendant, the Plaintiff has apparently elected to lay down his weapons and fight no more. The Case was dismissed pursuant to stipulation, with prejudice as to the named class representative and without prejudice as to the class members.
In all of TCPAWorld history, I cannot think of another reversal-of-fortune story quite like this one. Having a court approve an individual settlement in a certified class action is remarkable enough, but to see such a result entered in a case that looked so bleak for so long—and that held such a mythical place in TCPAWorld lore—is really quite remarkable.
This is truly a never-give-up and never-give-in result for the ages and one that should prove quite inspirational to any TCPA defendants finding themselves in harm’s way currently. Great work to all involved!
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