THE SITUATION:
With the COVID-19 pandemic came the rapid rise of telemedicine, a remote option that has become an integral part of healthcare.
Not long after the pandemic started, McDermott’s client – a national network of medical practices – recognized just how vital telemedicine could be. They sent fax alerts to affiliated medical providers offering virtual appointments to existing patients in need of treatment, hoping to keep patients out of crowded emergency rooms.
THE CHALLENGE:
One fax recipient (a serial litigant) filed a putative class action lawsuit in federal court under the Telephone Consumer Protection Act of 1991’s (TCPA) junk-fax provisions and sought more than $70 million in damages.
Soon thereafter, in a separate, parallel case with the same plaintiff and judge (but a different defendant), the court certified a TCPA class action filed under the same theory asserted against McDermott’s client. The other defendant appealed, but the appellate court affirmed the ruling against it.
In light of these adverse rulings, the McDermott team and its client knew they faced an uphill battle in securing a victory: They had to convince the court to reverse course and make the opposite decision in their case.
OUR OBJECTIVE:
A team led by Matthew Knowles, with assistance from Michael Kimberly, Elizabeth Rodd and Kamal Sleiman, aimed to disrupt the lawsuit by preventing class certification and laying the groundwork to prevail on appeal in the event of an adverse outcome.
THE OUTCOME:
The case ended in a complete victory for McDermott’s client. The team’s forward-thinking actions on the client’s behalf made the favorable outcome possible.
The team analyzed the adverse legal rulings in the companion case to help develop a sophisticated strategy on behalf of the client. First, during months of class-wide fact discovery, they subpoenaed nearly 80 telephone carriers and secured voluntary declarations from several phone companies that disproved the plaintiff’s theory for class-wide validation of its claims. As a result, in November 2022, the district court denied the plaintiff’s class certification motion – the opposite of the outcome in the companion case involving the same issues.
After a subsequent bench trial in the summer of 2023, the plaintiff appealed. However, the McDermott team quickly pivoted to assert standing and mootness arguments and moved to dismiss the appeal. The appellate court granted the team’s motion to stay the appeal pending resolution of those issues, and the appeal was dismissed soon thereafter.
DIG DEEPER:
Class action lawsuits are becoming more common and require guidance from experienced and trusted legal advisors to help prevent and, as needed, defend your company at all stages of the process.
McDermott has a deep bench of knowledgeable practitioners who draw on decades of experience to provide strategic and tactical counsel in the management of large and complex class action litigation.
Learn more about our class action capabilities.