Lynch Carpenter attorney Kyle Shamberg won a significant victory from the United States Court of Appeals for the Seventh Circuit in Bakov v. Consolidated World Travel, Inc. In a unanimous opinion released May 19, 2023, the appeals court affirmed the Northern District of Illinois court’s decision to shift costs of class notice to a defendant (CWT) found liable for bombarding consumers with prerecorded telemarketing calls in violation of the Telephone Consumer Protection Act (TCPA).

The circumstances of the district court’s ruling were unusual, in large part because of Shamberg’s persistence in advocating for consumers. In 2019, the court certified an Illinois class, but found it lacked jurisdiction to certify a class including out-of-state residents. Shamberg won summary judgment for the Illinois consumers and then, after the Seventh Circuit clarified class action jurisdictional requirements in an unrelated case, moved to amend the class definition and subsequently won summary judgment for a nationwide class. Because CWT’s liability was already established, the court shifted the costs of notifying out-of-state class members from plaintiffs to the defendant – saving over $600,000 in administrative costs.

CWT appealed the district court’s cost-shifting order, arguing that the Supreme Court’s decision in Oppenheimer Fund, Inc. v. Sanders created a categorical list of four factors courts must consider before issuing a cost-shifting order. Shamberg countered that Oppenheimer did not establish a bright-line rule, especially because the Supreme Court was not confronted there with a case where the defendant’s liability had already been determined. The Seventh Circuit held oral argument on February 10, 2022, and agreed with Shamberg’s argument that a prior finding of the defendant’s liability is a permissible basis for shifting costs of class notice.

By opening another route to shift the burden of administrative costs to tortfeasors, Bakov represents a significant win for consumers looking to vindicate their legal rights.

View the full opinion here.