Class action filed over robocalls likely related to Yaz litigation

A woman has filed a class action lawsuit over robocalls she contends were made in an effort to solicit women harmed by an oral contraceptive at the center of pending multidistrict litigation.

Michele Kaffko filed her suit Friday in Chicago’s federal court against R2J2 Studios LLC, a Pennsylvania internet marketing company she claims violated federal law by making unauthorized calls to her and other similarly situated individuals throughout the nation.

She brought her complaint under the Telephone Consumer Protection Act (TCPA), which she asserts “protects the privacy right of consumers to be free from receiving unsolicited telephone calls using a prerecorded or artificial voice.”

The TCPA provides for $500 in damages for each violation of the law, as well as treble the amount of statutory damages if the violation was willfully and knowingly made.

Kaffko's suit seeks an order certifying a class, an award of actual and statutory damages, an injunction requiring the defendant to stop making these types of calls and attorneys’ fees and costs.

She asserts that she received a call on her cell phone on April 15 from a phone number that was registered to R2J2 and when she answered, heard the following message announced by an artificial or prerecorded voice:

“We are calling on behalf of a women’s patient advocacy group and are trying to reach women who were harmed by Yaz, Yasmine [sic] and other birth control/hormone therapies. If you or someone you know or love has taken Yaz, Yasmine or any other type of birth control or hormone therapies, press 1 right now to talk to a representative … or press 9 to no longer receive these calls.”

Although the suit makes no mention of it, multidistrict litigation (MDL) was created over the Yasmin line of birth control pills in 2009. It remains pending before Chief Judge David Herndon of the U.S. District Court for the Southern District of Illinois.

The plaintiffs involved in the MDL claim that Bayer Corp.’s birth control pills caused heart attacks, strokes, embolisms and clots.

According to a July 10 report on pending MDL's on the U.S. Panel on MultiDistrict Litigation (JPML) website, more than 11,170 suits have been included in this MDL since it was first created and less than 10,000 remain pending.

Kaffko asserts in her suit that “in recent years, marketers who often have felt stymied by federal laws limiting solicitation by facsimile machine and e-mail have increasingly looked to alternative technologies through which to send bulk solicitations cheaply.”

“One of the newest types of such bulk marketing,” the suit states, “is to advertise through robocalls that feature an artificial or prerecorded voice advertisement,” like the one Kaffko contends she received from a number registered to R2J2.

She claims that over the course of an extended period starting this year, R2J2 and its agents directed the transmission of robocalls to the phones of those “they hoped were users of oral contraceptive medications and hormone therapies, including the oral contraceptive drug Yaz, and potential victims of certain supposed unintended side effects.”

In her suit, Kaffko contends that robocalls invade privacy more than conventional forms of advertisement because they are made to cell phones and can actually cost the recipients money when they pick up the calls, regardless of whether they are authorized or not.

By making these robocalls, Kaffko’s suit claims that R2J2 “has caused such call recipients actual harm, not only because the called parties were subjected to the aggravation that necessarily accompanies unsolicited calls – particularly calls using a prerecorded or non-human artificial voice – but also because the called parties, like Plaintiff, frequently have to pay their phone providers for the receipt of such calls, notwithstanding that they are made in violation of specific legislation on the subject.”

The suit seeks certification of a class that would include all persons in the U.S. who received one or more calls from R2J2 that used a prerecorded or artificial voice and did not consent to receive such calls.

Kaffko asserts in her suit that she “will fairly and adequately represent and protect the interests of the other members of the class” and “has retained counsel with substantial experience in prosecuting complex litigation and class actions.”

Her suit states that she and her attorney, Evan M. Meyers of McGuire Law P.C. in Chicago, “are committed to vigorously prosecuting this action on behalf of the other members of the Class, and have the financial resources to do so.”