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A Death-Defying Escape!: Cirque du Soleil Slips Certified TCPA Class Action for Faxes Sent Back in 2009

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It was an escape act worthy of Houdini, but it was brought to us by the good folks at Cirque du Soleil.

In a case that underscores the extraordinary challenges facing callers navigating TCPA issues, just last Thursday Circue du Soleil narrowly escaped a certified TCPA class action involving faxes from way back in 2009!

In Practice Mgmt. Support Servs. v. Cirque Du Soleil, No. 14 C 2032, 2018 U.S. Dist. LEXIS 12963 (N.D. Ill. Aug. 2, 2018) the Plaintiff had sued the Cirque folks–known for their high-flying acts and glamorous Vegas shows– for the most mundane of offenses: allegedly sending unsolicated faxes back in 2009 advertising something called “Saltimbanco.” Somewhat remarkably, the case had actually been certified as a class action back in March of this year. At that time the Court had determined that the 2009 faxes were still actionable because a series of class actions had challenged those same faxes dating back to the year they were sent (yes, Cirque du Soleil has been quietly dealing with these suits for nine years) meaning that–in the court’s view–the statute of limitations on claims related to the faxes were tolled and the claims could move forward. Yikes.

To understand why the court changes its mind–spoiler alert: it did– you must first understand why the court originally held the case could move forward in the first place. So the earlier ruling was based on the old U.S. Supreme Court decision of American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974), holding that the claims of class members are tolled during the pendency of a class action. The notion being that class members have the right to rely on the filing of the class action to protect their rights and need not file individual claims until the class issues are resolved. Yes, this is a complete fiction–class members by and large have no idea a class claim has been filed included them– but this is the flip side to the same legal fiction that animates the one-way intervention doctrine on display in Bad Reyes. So one takes the good with the bad I suppose, but I also digress.

In Practice Mgmt., a special case of American Pipe tolling had been applied. Remember Circue du Soleil has been pursued in a series of class actions. And although American Pipe (probably) assures an individual’s claims are tolled while a class action is pending, the circuit courts were split on the issue of whether successive class actions with tolled claims were possible. The Seventh Circuit Court of Appeal had permitted successive class tolling, however, which was the law the Practice Mgmt. court was bound to follow the first time it passed on the issue.

But look up there!–some intervening Supreme Court precedent came to the rescue. In June, 2018– just a few months after the case was certified–the U.S. Supreme Court handed down China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018). That case resolved the successive class action tolling question and held–directly–that American Pipe tolling only applies to individual claims not to class claims. So the Seventh Circuit had it wrong!

Freed from the shackles of American Pipe the Practice Mgmt. court made short work of Plaintiff’s class claims. Although the named Plaintiff may pursue his claims from 2009 based on the tolling created by the series of lawsuits Cirque du Soleil has been facing–the court found that the claims of the unnamed class members have evaporated before the current lawsuit had ever been filed. Thus the class was decertified and the ancient claims of class members regarding the long-forgotten faxes were dismissed. Bravo!

The court also soundly rejected the efforts of Plaintiff’s counsel to evade China Agritech‘s holding, suggesting that putative class counsel may have been abusing the system all along:

Allowing the same counsel to litigate three successive class actions over nine years is exactly the abuse of tolling that China Agritech seeks to prevent. Just like the third successive class action that the Supreme Court found untimely in China Agritech,  Practice Management’s class claims in this third successive action are untimely.

So while the court was required to hold its nose and allow the claim to move forward previously, China Agritech gave it the power to dismiss the claims outright. And that’s just what it did.

Once again, therefore, TCPAland delivers an extremely interesting result based upon an obscure body of procedural law proving, once again, that TCPA class litigation is not for the green of horn or the faint of heart like…say… this trapeze act.

 

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