Antitrust Law Daily Wrap Up, PRIVACY NEWS: Glass installation company seeks High Court review in TCPA class action, (Jan 7, 2016)

By Greg Hammond, J.D.

Ewing Industries Corp.—a glass installation, work, and contracting company—has petitioned the Supreme Court for review of a decision entered by the U.S. Court of Appeals in Atlanta that affirmed an order striking Ewing’s Telephone Consumer Protection Act (TCPA) claims. The appellate court, according to Ewing’s petition, held that the prior pendency of a class action dismissed before reaching the merits of class certification can never toll the statute of limitations for absent class members to maintain a subsequent class action (Ewing Industries Corp. v. Bob Wines Nursery, Inc., Dkt. 15-844).

Ewing originally filed suit against Bob Wines Nursery, Inc., alleging violations of the TCPA for sending unsolicited facsimile advertisements. Bob Wines Nursery previously obtained summary judgment in a similar class action because the alleged unlawful fax was not sent to the class representatives. The lower court in the instant case granted the Nursery’s motion to strike, finding the claims were time-barred under the TCPA’s four-year statute of limitations. The appellate court affirmed, following its own reasoning in an earlier case that plaintiffs may not “piggyback one class action onto another” and thereby engage in endless rounds of litigation in the district court and appellate courts over the adequacy of successive named plaintiffs to serve as class representatives.

Ewing asserts, however, that if class members cannot rely on tolling while they await a decision on class certification in the pending class action, they will have no choice but to file duplicative class actions to protect their chance for the only practical remedy available—a collective one. In addition, Ewing claims that decisions from other circuits have held that “class tolling” is permissible until a prior putative class representative loses class certification on the merits, reasoning that “class tolling” is necessary to allow the class at least one chance to seek class certification and to relieve absent class members of the necessity of filing their own duplicative class actions when no court has yet reached the issue of class certification.

The question presented is: Does the prior pendency of a class action that was dismissed before reaching the merits of class certification toll the statute of limitations for absent class members to bring a subsequent class action?

Attorneys: Phillip A. Bock (Bock & Hatch, LLC) for Ewing Industries Corp.

Companies: Ewing Industries Corp.; Bob Wines Nursery, Inc.

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