Judge Won’t Strike Class Claims From Sirius XM TCPA Row

Jarrett Uncategorized

Law360 (September 26, 2023, 3:23 PM EDT) — An Illinois federal judge has thrown out one claim in a proposed class action over Sirius XM Radio’s telemarketing practices but refused to strike the class allegations, saying the lead plaintiffs have adequately alleged for now that the satellite radio provider failed to implement changes laid out in a $25 million deal in a prior case.

The November 2022 suit claims Sirius XM Radio made unwanted telemarketing calls to consumers on the national Do Not Call Registry, in violation of the Telephone Consumer Protection Act, even after promising to change its telemarketing practices when faced with a similar suit.

The suit was brought by four named plaintiffs who say they have for years been hounded by unsolicited calls from the satellite radio provider — or companies acting on its behalf — since purchasing cars with a Sirius XM radio pre-installed or an unconfigured Sirius XM radio installation. None had signed up or paid for the radio company’s service, according to the suit, but Sirius XM obtained their phone numbers through the plaintiffs’ respective car dealerships and all four repeatedly asked the company to stop calling.

Sirius argued in a motion to dismiss in February the same attorneys who celebrated that past settlement they negotiated with the company could not now bring a new suit with similar claims. The 2020 settlement in the past case, Buchanan v. Sirius XM Radio Inc., also included changes to Sirius’ business practices, which those plaintiffs’ attorneys called “meaningful,” the company said.

The plaintiffs’ counsel cannot bring the latest suits without acknowledging that the past settlement terms were hollow for class members — and that they recommended the deal anyway to reap the legal fees, the company said.

But U.S. District Judge Colin Bruce said Monday that the radio company’s argument ” rests inevitably on a self-serving reading of plaintiffs’ allegations.”

Plaintiffs Julie Campbell of Illinois, Keith Sadauskas of Washington state, Diana Bickford of Maine and Kerrie Mulholland of North Carolina claim Sirius “failed to implement practice changes sufficient to comply with the TCPA,” the judge noted.

That allegation could be interpreted in two ways: one, that Sirius hasn’t sufficiently implemented changes to its business practices as contemplated in the Buchanan settlement agreement, or two, the company has implemented those changes, but they are nevertheless insufficient to establish a business relationship in compliance with the TCPA, Judge Bruce said.

“At this stage, the complaint must be viewed in the light most favorable to plaintiffs,” he said. “The court therefore construes plaintiffs’ allegation that defendant ‘failed to implement [sufficient] practice changes’ as an allegation that defendant failed to adequately implement those practice changes contemplated in the Buchanan settlement agreement. Based on this construction, defendant’s argument that counsel have an adequacy-defeating conflict must fail, and the motion to strike class allegations is denied on that basis.”

But he did grant the satellite radio provider’s bid to dismiss Campbell’s claim under the Illinois Telephone Solicitations Act, a law that requires a caller to “refrain from calling” any person who “requests to be taken off the [caller’s] contact list.”

The law makes clear that a private enforcement suit can only be brought by a customer injured by its violation, and Campbell does not qualify as a customer of Sirius XM because she merely purchased a car and received a free trial of the satellite radio service, Judge Bruce concluded.

“As plaintiffs do not dispute, the complaint makes abundantly clear that Campbell, like the other plaintiffs, did not purchase anything from defendant. It follows that Campbell does not have standing to pursue an ITSA claim,” he said.

Representatives of the parties could not be immediately reached for comment on Tuesday.

The proposed class is represented by Laura M. Carroll and Mason A. Barney of Siri & Glimstad LLP, Daniel M. Hutchinson of Lieff Cabraser Heimann & Bernstein LLP, Jarrett L. Ellzey of Ellzey & Associates PLLC and Carl R. Draper of Feldman Wasser.

Sirius XM is represented by Christopher A. Hall, Lee A. Armstrong, Thomas Demitrack and Jeffrey R. Johnson of Jones Day.

The case is Campbell et al. v. Sirius XM Radio Inc., case number 2:22-cv-02261, in the U.S. District Court for the Central District of Illinois.

–Additional reporting by Rachel Riley. Editing by Alex Hubbard.