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Overstreet removes Driscoll TCPA action to federal court

Madison County Record

Thursday, October 15, 2020  |  Article  |  By Steve Korris

Candidates--Judicial (27b)

EAST ST. LOUIS – Illinois Supreme Court candidate David Overstreet, under an order of St. Clair County Associate Judge Jeffrey Watson to stop sending text messages to voters, sought relief in U.S. district court on Oct. 12.

He argues that allegations from plaintiff Jacqueline Racener of Belleville that his campaign organization violated federal communications law belonged in federal court.

On Sept. 30, Watson signed a temporary restraining order against Overstreet, without notice to him.

Overstreet, a Republican from Mount Vernon, is running against Judy Cates, a Democrat from Swansea. Both serve as appellate justices at the Fifth District Appellate Court.

St. Louis lawyer John Driscoll, a top contributor to Cates, had filed the suit earlier in the day on Sept. 30.

Overstreet called the action "nothing more than Judy Cates using the legal system as her personal playground. It’s a political stunt from a desperate campaign. We have retained legal counsel and will refer you to them.“

Driscoll leads a firm in downtown St. Louis, and is among the top spending law firms seeking clients to sue the manufacturer of weedkiller Roundup. In 2019, Driscoll and Onder Law spent $8 million combined to attract and sign up plaintiffs in their campaigns against Bayer, which in 2018 acquired the original manufacturer of Roundup, St. Louis-based Monsanto.

According to campaign finance records, Driscoll gave Cates $11,600 in January and $10,000 in August. Driscoll also provided her a vehicle from Feb. 1 to June 30, at $400 a month. She listed the monthly amounts as contributions in kind.

In the action against Overstreet, Driscoll proposes a class action seeking damages between $500 and $1,500 for each violation of the Telephone Consumer Protection Act of 1991.

“Where here there were as many as five unwanted text communications sent to Ms. Racener, the responsible parties could be liable for damages of between $2,500 and $7,500 to Ms. Racener alone,” and damages would increase exponentially until defendants were enjoined, he wrote.

According to the suit, Racener never heard of Overstreet and never consented to be contacted in the manner she was.

Messages and pictures allegedly alarmed and disturbed her.

Driscoll moved to discover identities of entities behind the messages, which came from area code 304 of West Virginia.

He alleges an emergency, stating the Supreme Court requires judicial candidates to close their committees 90 days after an election.

He wrote that Overstreet and his agents “would be able to avoid having to pay for flagrant and repeated Telephone Communication Privacy Act violations.”

Chief Judge Andrew Gleeson had assigned the case to Watson, who signed an order Driscoll wrote.

Watson set the temporary restraining order to expire Oct. 10, and he set a hearing Tuesday, Oct. 13.

Overstreet retained attorney Patrick Bousquet of Chicago, who disposed of the hearing by filing removal papers on the Monday holiday.

Driscoll immediately moved to remand the action to St. Clair County on Oct. 13, claiming it didn't qualify for federal jurisdiction because he filed it as a discovery petition rather than a civil suit.

He describes the action as "an effort to responsibly seek the additional discovery in order to identify the proper parties in her yet to be filed legal action."

And, he describes the removal as "a desperate eleventh hour stall tactic."

Magistrate Judge Reona Daly will preside unless a party declines magistrate jurisdiction.

If that happens a district judge will preside.