CHICAGO— A Chicago federal judge has allowed Cirque Du Soleil to turn out the lights on a class action lawsuit accusing the entertainment brand brought against it for allegedly sending junk fax ads, allegedly in violation of the federal Telephone Consumer Protection Act (TCPA).
In finding for Cirque du Soleil, U.S. District Judge Thomas M. Durkin cited the U.S. Supreme Court's 2018 decision in China Agritech, which resolved a lower court split over the application of the so-called equitable tolling doctrine, due to "untimely successive class actions." In China Agritech, the court held the case did "not permit a plaintiff who wauts out the statute of limitations to piggyback on an earlier, timely filed class action."
“Allowing the same counsel to litigate three successive class actions over nine years is exactly the abuse of tolling the China Agritech seeks to prevent,” Durkin wrote. Further, the Supreme Court drew a “clear distinction between successive individual suits and successive class actions.”
Cirque du Soleil had been sued by plaintiff Practice Management Support, represented by the firm of Anderson Wanca, of Rolling Meadows.
In an Aug. 2 filing, defendant Cirque du Soleil moved to decertify the class and argued the plaintiff’s class claims in this “third successive class action are untimely” and that the 2009 case involved use of a “fax broadcasting service” that advertised the circus’ shows, “without providing sufficient instructions about how to opt out.”
Durkin called this case “sprawling” in the 14-page filing. Further, he noted this is the “third successive class action case filed against Cirque du Soleil entities by the same counsel based on the same fax transactions.”
Previous “relevant history” cases included filings in both federal and state courts. As detailed in the documentation of the cases, the counsel moved well after the deadlines - one came three days after the close of fact discovery, and one five months after the close of discovery - for extensions on the complete discovery, as well as to reopen the period to add additional parties. These requests were denied by the court for “inexcusable delay,” among other reasons.
Cirque du Soleil has been represented in the case by attorneys with the firm of SmithAmundsen, of Chicago.
U.S. District Court for the Northern District of Illinois, Eastern Division, case No. 14 C 2032