O'Shea v. American Solar Solution, Inc.
3:14-cv-00894
| S.D. Cal. | May 21, 2018Background
- Plaintiff Kerry O’Shea filed a TCPA class action against American Solar Solution, Inc. alleging use of an ATDS to place telemarketing calls to cellular numbers.
- Defendant used a ViciDial predictive dialer and purchased telephone lists from third-party vendors. Plaintiff’s expert attributes 897,534 calls to 220,007 unique cell phones during Nov. 22, 2012–Aug. 22, 2015.
- Plaintiff received at least 15 calls; no evidence that recipients gave prior express consent.
- Plaintiff obtained class certification and moved for summary judgment seeking statutory damages ($500 per call, or $1,500 per call if willful).
- Defendant opposed, disputing the accuracy/weight of the expert’s call-count and denying knowing/willful violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accuracy of call-count (number of TCPA violations) | Hansen’s analysis of Defendant’s dial list and industry databases proves 897,534 calls; no reasonable jury could reject it | The stipulated reference to Hansen’s conclusion isn’t an admission of accuracy; databases or data entry may be unreliable | Denied: court finds Hansen’s methodology persuasive but concludes a genuine factual dispute remains for a jury |
| Effect of joint stipulation to expert’s conclusion | Stipulation that Hansen identified 897,304 calls constitutes admission of that fact | Stipulation only concedes Hansen made that identification, not that his conclusion is accurate | Denied: stipulation does not bind Defendant to the accuracy of Hansen’s numbers |
| Willfulness (enhanced damages) | Calls were knowing/willful, entitling class to up to $1,500 per call | Defendant denies knowing/willful conduct; factual dispute exists | Not decided on summary judgment; willfulness remains a disputed fact for trial |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting principles)
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (moving party must meet initial burden or summary judgment denied)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must show specific facts creating genuine issue)
- C.A.R. Transp. Brokerage Co. v. Darden Restaurants, 213 F.3d 474 (party bearing trial burden must present evidence sufficient for directed verdict at summary judgment)
- Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. rule that prior express consent is an affirmative defense under TCPA)