TCPA Class Rejected on Defendant's Motion

Readers may know that there is a fair amount of litigation alleging violation of the Telephone Consumer Protection Act. What's interesting about this proposed TCPA class action, Ryan v. Jersey Mike's Franchise Sys., No. 3:13-cv-01427-BEN-JLB (3/28/14), is that the decision comes on defendants' motion to deny class certification, an aggressive and perhaps seldom used preemptive motion. 

A court is required to determine whether or not to certify the action as a class action at an early "practicable time." Fed. R. Civ. P. 23(c)(l)(A). Rule 23 is not a mere pleading standard, and a party seeking class certification must affirmatively demonstrate his or her compliance with the Rule.  Wal-MartStores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). It may be necessary for a court to probe behind the pleadings before coming to rest on the certification question. In making the class certification determination, a court is required to engage in "rigorous analysis." Id. That analysis frequently entails "some overlap with the merits of the plaintiffs underlying claim." Id.

Several courts have approved the use of preemptive motions to deny class certification before a plaintiff has filed a motion to certify a class. E.g., Vinole v. Countrywide Home Loans, 571 F.3d 935, 941 (9th Cir. 2009). Such motions may be appropriately granted before discovery has been completed, as district courts have broad discretion to control the class certification process and have the discretion to determine whether discovery will be permitted. A party seeking class certification is not always entitled to discovery on the class certification issue.  See Doninger v. Pac Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977). A motion for class certification can be properly denied without discovery where plaintiffs cannot make a prima facie showing of Rule 23's prerequisites or where discovery measures are not likely to produce persuasive information substantiating class action allegations. 

Plaintiff here alleged that defendants transmitted unauthorized bulk spam text messages to the cellular phones of unwilling customers in order to promote their shop. Plaintiff alleged that these text message were aggravating and required consumers to pay their cell phone providers to not receive the spam messages. Plaintiff claimed that defendants assembled lists of consumer cell phone numbers, "without any authorization" to use the numbers.  Plaintiff alleged that the defendants then sent massive amounts of spam commercial text message advertisements, using auto-dialers or robo-callers.  Plaintiff further alleged that the texts were sent to mobile phone users with whom the defendants had "no prior business relationship."

The court described that the defendant store had a customer loyalty program known as the "Shore Points" in which it issued customers loyalty cards that they could use to earn and redeem "loyalty points" for free products. Each card had a unique bar code number and was linked in a database to a telephone number provided by the customer when the card is issued. Defendants claimed the only numbers in their records were numbers provided by their customers. Defendants explained that messages are only sent to members of the loyalty program who gave their cell phone numbers to the stores.  Plaintiff admits that he was given a loyalty card on one of his visits to the store, and he got a test message advertising the store, and offered free chips and a drink with the purchase of any sub.

Readers know that the typicality requirement is to assure that the interest of the named representative aligns with interests of the class.  E.g.,  Hanon v. Dataproducts Corp., 976F.2d 497, 508 (9th Cir. 1992). In determining whether the typicality requirement is satisfied, a court determines whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.

Here, plaintiff said he did not remember ever giving a phone number,  but was "not 100% sure. I suppose it's possible." He argued that not remembering interactions with fast food attendants made him a "more typical consumer, not less typical."

On defendants' motion, the court concluded that class certification was inappropriate in this case; plaintiff was fatally inconsistent and uncertain about critical issues relating to the possible consent to receive text messages. These consent issues were critical to any theory of recovery, including the TCPA. While plaintiff stated under oath in his deposition that he did not provide his phone number, it was clear he did not remember his conversation with the cashier. His inconsistency and uncertainty rendered class action treatment inappropriate.  Plaintiff could not represent a class of individuals who did not give out their phone numbers because he was unsure whether he did not give the defendants his phone number.

While it was quite possible that most people would not remember such details, that did not make plaintiff an appropriate representative of a class to assert the rights of others.  Discovery would not allow him to resolve the uncertainty regarding his own experience. An inability to remember key details may be typical, but the typicality requirement of a class action lawsuit demands more.  Plaintiff's conflicting accounts of critical facts that would determine what kinds of claims he could bring meant that the necessary alignment of interests is impossible. Motion granted, no class.