Lifetime Entertainment Services LLC Jan. 31 fought off another class action alleging it unlawfully called consumers to promote its television show “Project Runway.”
The four-year statute of limitations on the Telephone Consumer Protection Act claims was paused only until class certification was denied in an earlier suit making the same allegations, the U.S. Court of Appeals for the Second Circuit affirmed in an unpublished opinion.
The attorney who filed follow-on suit knew it was time-barred, warranting the sanctions imposed by the lower court, the appeals court said.
A 2013 suit alleged Lifetime violated the TCPA by calling Time Warner Cable subscribers in New York in 2009 with a prerecorded advertisement. The district court denied class certification in 2015, finding the proposed class wasn’t ascertainable. The Second Circuit affirmed.
A day after the Second Circuit’s ruling, the same attorney, Todd C. Bank, brought another class action with identical allegations based on the 2009 calls with Kevin McCabe as lead plaintiff.
The district court dismissed McCabe’s claims as time-barred and ordered Bank to pay Lifetime’s costs and $5,000 in attorneys’ fees.
Bank appealed, arguing the statute of limitations wasn’t restarted when class certification was denied, but when the Second Circuit affirmed the denial.
But the appeals court disagreed. “Neither a motion for reconsideration nor an appeal from a denial of class certification continues tolling because class members can no longer reasonably rely on the named plaintiffs to represent their interests once the district court denies certification,” the court said.
It also found the sanctions against Bank warranted because his arguments to the district court were frivolous and have been consistently rejected by the Second Circuit and other circuit courts.
Judges Rosemary S. Pooler, Reena Raggi, and Debra Ann Livingston joined the opinion.
Todd C. Bank in Kew Gardens, N.Y., represented the class.
Davis Wright Tremaine LLP represented Lifetime.
The case is McCabe v. Lifetime Entm’t Servs., LLC, 2019 BL 30927, 2d Cir., No. 18-1149, unpublished 1/31/19.
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