In Parchman v. SLM Corporation, 2018 WL 3479228, at *6–10 (6th Cir. 2018), the Court of Appeals held that the TCPA is a remedial, not penal, statute and, therefore, survives the death of the Plaintiff. The Court of Appeals held, however, that the survivability question was different than whether the substituted Plaintiff was a proper class representative.
The district court provided three reasons for denying the substitution of Parchman’s daughter. First, the district court said that the TCPA was penal in nature and therefore found that an action under the TCPA did not survive Parchman’s death. Second, the district court said that a TCPA claim “constitutes a right of privacy action,” which is a personal right that “may not be assigned to another” or “asserted by a member of the individual’s family, even if brought after the death of the individual.” (R. 91, Opinion, PageID # 691.) Finally, the district court said that Parchman’s daughter would not be a proper representative of the class because she lacked standing due to “her lack of injury in fact,” because there was no allegation that “she received a call or was ever the intended recipient of any of the calls from these Defendants.” (Id. at # 691.) The district court denied the motion to “Amend the Complaint to substitute Jeffrey Parchman’s daughter as class representative.” (Id. at # 692.) We first consider whether a claim under the TCPA survives a plaintiff’s death. “The question of survivability … [is] [a] matter[ ] of federal law.” Murphy v. Household Fin. Corp., 560 F.2d 206, 208 (6th Cir. 1977) (citing Bowles v. Farmers Nat’l Bank of Lebanon, Ky., 147 F.2d 425, 430 (6th Cir. 1945) ). The TCPA does not contain an expression of Congressional intent regarding survival. . . Under the “federal common-law rule for the survivability of statutory causes of action,” “ ‘remedial’ claims—i.e., claims to compensate the plaintiff—survive a party’s death, whereas ‘punitive’ claims—i.e., claims to punish the defendant—do not.” Haggard v. Stevens, 683 F.3d 714, 717 (6th Cir. 2012) (citing Murphy, 560 F.2d at 208–09, 211). . . . The survivability of a private action under the TCPA is a matter of first impression for the Courts of Appeals. The only court to squarely address the question is the Western District of New York in Hannabury v. Hilton Grand Vacations Co., LLC, 174 F. Supp. 3d 768, 771–76 (W.D.N.Y. 2016). That court concluded that because the TCPA was penal in nature, TCPA claims “abate upon the Plaintiffs death.” Id. at 776. The district court followed the Hannabury court precisely. But because we disagree with the Hannabury court’s analysis and conclusion, we conduct the three factor analysis anew. . . In all, then, we think that claims under the TCPA are best characterized as remedial. “The fact that the statute allows for accumulated recovery does not convert an otherwise remedial statutory scheme into a penal one.” Murphy, 560 F.2d at 210 (citing Huntington v. Attrill, 146 U.S. 657, 667–68 (1892) ). As a result, claims under the TCPA do survive a plaintiff’s death. Accordingly, we REVERSE the district court’s holding regarding the survivability of Parchman’s TCPA claims. . . . Finally, the district court stated that Parchman’s daughter would not be a proper representative of the class because she did not suffer any injury since she was never a recipient of the calls. But the question of whether Parchman’s daughter would be an adequate class representative under Rule 23 is different than the question of whether the complaint can be amended to substitute her. And to the extent the district court’s conclusion was based on a finding that the daughter lacked standing because she had not suffered an injury, we think that resulted from and is inextricably intertwined with its earlier conclusion that Parchman’s TCPA claim did not survive Parchman’s death. But, as already discussed, a TCPA claim does survive death. Therefore, the district court’s statement was not pertinent to whether the daughter could be substituted for Parchman on his individual, rather than class, claims. Consequently, we REMAND for the district court to reconsider the motion to amend the complaint to substitute Parchman’s daughter for Parchman. We leave it to the district court’s determination on remand whether it is necessary to address the issue of who has the survivor’s rights in this case.