Lemberg Law Wins Class Certification in Robocall Case

In an abject rejection of a robocalling company’s argument, the U.S. District Court for the District of New Jersey ruled in Lemberg Law’s favor and granted class certification in Johnson v. Comodo Group. The impact of this ruling is that the class action lawsuit against Comodo Group can move forward. According to Managing Partner Sergei Lemberg, “We’re beyond pleased that the court ruled in our favor, and look forward to the next phase of the case.”

The 20-page court ruling outlined the facts of the case, namely that Comodo Group crawled the internet, using data scraping techniques and manual look-ups to compile a contact database of website owners who used secure sockets layer (SSL) certificates. The company, which sells SSL certificates, used that database to robocall an estimated 34,568 owners of soon-to-expire certificates in order to sell them the certificates.

Lemberg Law’s client, Michael Johnson, was on the receiving end of Comodo Group’s unwanted cell phone robocalls. Indeed, Comodo Group robocalled him seven times without his consent. The company even called after Mr. Johnson asked them to stop calling, and after the sales agent marked Mr. Johnson’s number as a “do not call” number.

The class action lawsuit alleges willful violations of the Telephone Consumer Protection Act. Although Comodo Group moved to dismiss the lawsuit, saying that the TCPA is unconstitutional, the federal government stepped in, arguing that the TCPA doesn’t violate the U.S. Constitution. The company also argued that its technology didn’t meet the TCPA’s definition of an automated telephone dialing system (ATDS). The court rejected that argument, ruling that Comodo Group’s predictive dialer is an ATDS as defined by the TCPA.

The court also rejected the company’s argument that its prerecorded voicemails couldn’t have violated the TCPA because a sales agent had to push a button in order for the voicemail to begin. Writing that the statute and caselaw make no distinction between prerecorded messages played by a human or machine, the court denied Comodo Group’s motion for summary judgment on that basis.

Class action lawsuits are certified to move forward when four criteria are met: the number of people impacted is large enough to make it impractical for each to pursue a separate legal action; the members of the class have the same legal basis for the action; the lead plaintiff (in this case, Mr. Johnson) is typical of the class members; and the attorneys (in this case, Lemberg Law) have the expertise to protect the interests of those in the class. The court ruled that all four criteria have been met and that the class action case against Comodo Group can proceed.

More information about the case can be found here.

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