Yesterday, in O’Shea v. American Solar Solution, Inc., the United States District Court for the Southern District of California handed Defendant American Solar Solution its place in the sun— denying a Plaintiff’s motion for summary judgment in a certified TCPA class action.  

O’Shea involves telemarketing calls to cell phones related to Defendant’s solar energy products and services. The case was certified on April 15, 2014, with the Court finding Plaintiff satisfied the requirements of Federal Rule of Civil Procedure 23(a) and Rule 23(b).  

On December 1, 2017 the Plaintiff moved for summary judgment arguing that there was no dispute as to the number of class members or with respect to the number of calls attempted to each class member using regulated technology. Plaintiff argued that its expert had identified 897,304 total calls to 220,007 unique cell phones and that the class was entitled to recover $500.00 for each of those calls. Thus Plaintiff sought nearly $450MM in statutory damages on behalf of the class.

In addressing the Motion, the Court side-stepped the issue of whether or not the Defendant utilized technology governed by the TCPA and, instead, denied summary judgment on the ground that the methodology proposed by Plaintiff’s expert—the prolific Jeff Hansen— may or may not ultimately be determined sound by the trier of fact. Notably, the Court found that Defendant’s stipulation as to the number of calls and class members Mr. Hansen had identified was just that and no more— Defendant had not stipulated that Mr. Hansen’s counts were right.

While the Defendant narrowly avoided disaster on summary judgment, O’Shea once again re-affirms the incredible stakes facing Defendants in TCPA class litigation. It also underscores the highly-factual nature of expert reports and methodologies purporting to ascertain class members and damages. We’ll keep a close eye on the case as it heads toward trial.