Antitrust Law Daily Wrap Up, PRIVACY—D.N.J.: Health services marketer avoids TCPA liability, (Jul 2, 2015)

By Greg Hammond, J.D.

A consumer could not state valid Telephone Consumer Protection Act (TCPA) claims against a residential health services marketer where the plaintiff’s spouse was the regular user of the subject telephone number and used the phone for personal and business purposes; the number was listed on the spouse’s letterhead for his legal practice; and the spouse was the intended recipient of the communication at issue. A second complaint was also dismissed by the federal district court in Newark, as a plaintiff cannot maintain two parallel causes of action to litigate a single issue against the same parties (Sacchi v. Care One, LLC, June 30, 2015, Wigenton, S.).

John Sacchi filed a putative class action against Care One, LLC—a marketer and seller of residential health services—alleging that Care One maintained an illegal telephone solicitation practice in violation of the TCPA. Specifically, Sacchi alleged that Care One called his cellphone in January 2014 on multiple occasions, without prior consent, and left pre-recorded voice messages inviting him to attend a Care One career fair. The calls at issue were made by Guide Publications, Inc., which hosts career fairs for itself and on behalf of corporations like Care One.

Guide Publications claims to have obtained the telephone number at issue from Sacchi’s spouse and attorney of record, Steven J. Simoni, when he attended a Guide Publications career fair. Simoni has also allegedly been receiving and opening email newsletters from Guide Publications since June 2012.

Sacchi filed a putative class action alleging violations of the TCPA, trespass to chattel, and conversion. A second suit was subsequently filed naming both Sacchi and Simoni as plaintiffs; excluding the trespass to chattel and conversion claims; and naming Care One and its affiliates—Guide Publications and MDB Staffing LLC—as defendants. Care One moved for judgment on the pleadings with regard to the first complaint and the defendants collectively moved to dismiss the second complaint.

In support of its motion for judgment on the pleadings, Care One argued that Sacchi lacks statutory standing to assert claims under the TCPA because he was not the “called party.” The court agreed, finding that the proper plaintiff in this case is Simoni, noting that Simoni is the regular user of the subject telephone number; he admitted that he uses that number for personal and business purposes; the number is listed on the letterhead of his legal practice; Simoni was the intended recipient of Care One’s communication; he was the intended recipient of the telephone calls; and he has been receiving and opening emails from Care One through Guide Publications.

The motion to dismiss the second complaint was also granted, because a plaintiff may not simultaneously maintain two identical causes of action against the same parties. The court found that all of the causes of action alleged in the second complaint were based on facts that had accrued at the time the first complaint was filed, and involves parties known to plaintiffs well within time for plaintiffs to seek leave to amend their complaint. Further, the court could not find any legal precedent allowing two plaintiffs to assert concurrent TCPA claims on the basis of the same alleged violation. Sacchi was not the called party and was therefore an improper plaintiff. Lastly, the second complaint named Simoni as both class representative and class counsel, which is prohibited in the Third Circuit.

The case numbers are 2:14-cv-00698 (SDW)(SCM) and 2:14-cv-07175 (SDW)(SCM).

Attorneys: Richard S. Meisner (Jardim Meisner & Susser, PC) for John Sacchi. Jamie P. Clare (Cole Schotz PC) for Care One, LLC.

Companies: Care One, LLC; MDB Staffing LLC; Guide Publications, Inc.

Cases: Privacy NewJerseyNews