ATLANTA (CN) — An attorney for DirecTV asked an 11th Circuit panel Tuesday to overturn a ruling granting class certification to consumers who say the satellite-TV giant made thousands of unwanted, automated telemarketing calls.
In 2017, a federal judge granted class certification to two national classes made up of over 16,000 consumers suing DirecTV for violations of the Telephone Consumer Protection Act and Federal Communications Commission regulations.
The class members, led by named plaintiffs Sebastian Cordoba and Rene Romero, claimed in a federal lawsuit that DirecTV did not implement mandatory minimum procedures for making telemarketing phone calls and failed to maintain an internal "do-not call" list of people who requested not to receive the calls.
According to the complaint, DirecTV's telemarketing agent, Telecel Marketing Solutions Inc., made over 60,000 phone calls to about 24,000 phone numbers between March 2015 and March 2016, including to people whose numbers were already on the National Do Not Call Registry.
The class also alleged that during litigation, DirecTV disclosed the personally identifiable information of over 9,000 people to its expert witness in violation of the Satellite Television Extension and Localism Act of 2010.
According to court documents, DirecTV argued that because the class members are not alleged to have requested placement on the internal do-not-call list, they could not have suffered an injury caused by the failure to put in place procedures to process such requests.
In July 2017, U.S. District Judge Mark Cohen in Atlanta ruled that the class members demonstrated they suffered sufficient harm due to the phone calls to have standing to sue DirecTV.
"Just as a junk fax renders a fax machine temporarily unavailable, a call placed in violation of the TCPA—whether or not a person has taken any affirmative steps to avoid it, like requesting placement on a caller's [do-not-call] list—deprives its recipient of time, mental energy and privacy," Cohen wrote.
On Tuesday morning, attorney Andrew Pincus of Mayer Brown argued on behalf of the company and said the district court should not have granted the class certification, telling the three-judge 11th Circuit panel that any consumer who failed to make a request to be on DirecTV's do-not-call list lacks standing.
"Each class member's standing has to be proven during trial. It must be ascertained. The district court failed to undertake these individualized issues," Pincus said.
"You're saying they don't have standing because their injury is not concrete or immediate?" U.S. Circuit Judge Stanley Marcus asked.
"Their principal argument is that a call equals injury. But there is no causal connection between the call and any injury. Our argument is traceability - the injury must be traceable to a procedural violation," Pincus explained.
"I thought increasing the risk of injury could be sufficient as an injury. If the injury is getting the call, then not keeping a [do-not-call] list increases the risk of injury, doesn't it?" asked Senior U.S. Judge Jane Restani, sitting by designation from the Court of International Trade.
"Not for people who never objected, who never asked to be on the list," Pincus replied.
Under questioning from Marcus, Pincus admitted that DirecTV does not know how many members of the class made a request to be placed on the do-not-call list.
But attorney Jonathan Selbin of Lieff, Cabraser, Heimann & Bernstein, arguing on behalf of the class, said the class members suffered a clear and traceable harm due to DirecTV's telemarketing calls.
"We know the call is a harm because it involves time, mental energy, and the use of a homeowner's phone," Selbin told the panel. "There was an unrestricted telemarketing campaign and they failed to maintain a do-not-call list."
"If I'm a homeowner and they call me twice, I hang up and I don't call or write to them to tell them not to contact me, then whether they maintain a list seems irrelevant to me," Marcus said.
"The class members have standing even if they did not request to be on the do-not-call list. The class members received calls and they had no opportunity to say no. [DirecTV] didn't maintain a list so there was no opportunity not to get called. It's sort of like trespass – if you come onto my property I could sue you. I'd be the right person to sue you," Selbin explained.
The attorney continued, "It may be that if they'd kept these records, we may have had to prove standing but they didn't. Their failure to maintain a list is part of what gives us standing.”
Marcus and Restani were joined on the panel by Senior U.S. Circuit Judge Susan Black.
The panel did not indicate when it will issue a decision in the case.
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