Harrah's says judge should not allow 'fishing expedition' in class discovery

By Ann Knef | Jan 21, 2009

A casino accused of violating the Telephone Consumer Protection Act (TCPA) says prerecorded promotional phone calls it made were sent only to members of its "Total Rewards" program.

A casino accused of violating the Telephone Consumer Protection Act (TCPA) says prerecorded promotional phone calls it made were sent only to members of its "Total Rewards" program.

Harrah's Metropolis Casino, facing a proposed TCPA class action suit in federal court, argues that plaintiff's counsel should not be allowed "loose on a fishing expedition" to establish numerosity.

The suit was filed in the Southern District of Illinois in November by class plaintiff Richard Vigus who alleges his privacy was invaded when Harrah's called his telephone line and delivered a pre-recorded voice message. He claims Harrah's made the same phone call to at least 39 other recipients.

In response to Vigus's motion to certify the case as a national class action, Harrah's says it only makes calls to persons who have supplied their contact numbers.

"...[T]he only logical explanations for Plaintiff receiving the prerecorded message from Harrah's Metropolis which was intended for one of its Total Rewards members, is that the Total Rewards member who opened the account and supplied the telephone number which Plaintiff alleges is now his residence number, either supplied an incorrect telephone number or moved and obtained a new telephone number without providing Harrah's with updated contact information and the Total Rewards member's old telephone number was recycled by a telephone company and reassigned to Plaintiff," stated Harrah's attorney Bart Murphy of Lisle, Ill.

Vigus is represented by Brad Lakin, Paul Marks and Robert Schmeider, II of the Lakin Law Firm in Wood River. In addition, Phillip Bock of Chicago, Brian Wanca of Rolling Meadows and Max Margulis of Chesterfield, Mo., will represent Vigus and the class.

Murphy argues that plaintiff's motion to certify the case should be denied "on its face."

He stated that plaintiff's counsel has advised that they intend to purse certification "on the theory that there were other individuals who were in the same situation as they allege the Plaintiff apparently is, having acquired recycled phone numbers which were formely assigned to members of Harrah's Total Rewards program."

Murphy states that such a theory calls for individual determinations of fact as to whether a person is a member of the class or not.

"On its face Plaintiff's theory of class certification should be rejected as it would require individual factual determination into whether the class member had an established business relationship with Harrah's Metropolis," Murphy wrote.

He also argued that the Court should not turn plaintiff's counsel "loose on a fishing expedition."

"Plaintiff does not have a good faith basis for asserting that the 'freak occurrence' which apparently resulted in his receiving a prerecorded message intended for a Total Rewards member occurred with sufficient frequency to warrant certification of a class," Murphy wrote.

The case is assigned to District Judge J. Phil Gilbert in Benton. It was originally assigned to Judge William Stiehl, but he entered an order of recusal in the case.

A telephone discovery conference has been set for at 9 a.m. on Feb. 6 before Magistrate Judge Philip Frazier.

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