In
Hirsch v. USHealth Advisors, LLC, Judge Pittman, of the United States District Court for the Northern District of Texas, denied Aaron Hirsch’s (“Plaintiff”) Motion for Class Certification, which was based on allegations that USHealth Advisors, LLC (“USHA”) and USHealth Group, Inc. (“USGA”) (collectively “Defendants”) violated the Telephone Consumer Protection Act and Maryland equivalent of the Telephone Consumer Protection Act. In doing so, the Court put a dent in claims where professional plaintiffs seek to profit off the TCPA.
In that case, Plaintiff developed a plan to “profit through the TCPA.” When Plaintiff was called by a lead-generation vendor, Plaintiff, on multiple occasions, stated he was interested in buying health insurance (although he was not), scheduled a phone call with a USHA agent, and, after receiving the call from the USHA agent, asked to be placed on the internal do not call list. When Plaintiff received subsequent calls and texts, he moved to certify a class of similarly situated persons for violations of the TCPA and the Maryland equivalent of the TCPA.
Tuesday, December 29, 2020
A recent denial of a professional plaintiff’s motion for class certification shows that, irrespective of whether such plaintiffs have standing to sue on their own behalf, courts are increasingly skeptical that contrived claims are amenable to class treatment.
See Hirsch v. USHealth Advisors, LLC, No. 4:18-CV-00245-P, 2020 WL 7186380, at *1 (N.D. Tex. Dec. 7, 2020).
The Facts
The plaintiff in this case, Aaron Hirsch, was a real estate agent who used his cell phone for both business and personal use. He had listed his cell phone number on the national Do-Not-Call Registry, but also advertised his business using his cell phone number and even took partial tax deductions for his cell phone. Eventually, Hirsch and his friend Max Maccoby, a lawyer, developed a plan to profit through the TCPA. Hirsch would log any telemarketing calls that he received, and Maccoby would review the log for potential TCPA litigation. Through this scheme, Hirsch learned to feign interest to elicit additional calls from the caller or the company on whose behalf the caller was allegedly calling.