Fail-Safe Class Fails in the Eastern District of Pennsylvania

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In Zarichny v. Complete Payment Recovery Servs., Civ. No. 14-3197, 2015 U.S. Dist. LEXIS 6556 (Jan. 21, 2015), Plaintiff Sandra Zarichny attempted to bring a class action on behalf of two classes against defendants Fidelity National Information Services (“FIS”) and Complete Payment Recovery Services (“CPRS”). Id. at *1-2. Zarichny alleges that the defendants called her eleven times because they incorrectly believed that she owed a debt based on her alleged failure to return textbooks that she rented. Id. at 7-8. In her complaint, Zarichny alleged that the Defendants deliberately harassed her by calling at inconvenient times. Id. at 9. Zarichny alleged that both corporations violated the TCPA and the Fair Debt Collections Practices Act (the “FDCPA”).

Fidelity and CPRS brought a motion to dismiss Zarichny’s complaint and a motion to strike her class allegations, which the court granted in part and denied in part.

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Somewhere Out There, a Certain Gecko Lets Out a Sigh of Relief

Judge Kathleen M. Williams of the Southern District of Florida handed GEICO a decisive victory on September 29, 2014, when she denied a renewed motion to certify a class of individuals who purportedly received robo-calls from GEICO because she found that the plaintiff failed to provide sufficient proof of numerosity.

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State Courts Disagree About Whether Statutory Damages Make Class Actions an Inferior Method for Adjudicating TCPA Claims

The statutory damages that have caused so many plaintiffs to file TCPA class actions have also caused some courts to find that class actions are not the superior method for adjudicating them.   Federal Rule of Civil Procedure 23(b)(3) requires not only that common questions predominate over individual ones, but also that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Whether a class action is the superior method for adjudication depends on a number of stated and unstated considerations, among them “the class members’ interests in individually controlling the prosecution or defense of separate actions.” Fed. R. Civ. P. 23(b)(3)(A). As we have noted before, some courts have held that TCPA claims are categorically unfit for class treatment because $500-$1,500 plus attorneys’ fees and costs is adequate to incent individuals to file claims, is disproportionate to any actual damages, and is potentially ruinous if aggregated in a class action. Two state courts recently addressed this issue and reached contrary conclusions.

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W.D. Wash. Adopts Preponderance of the Evidence Standard for Elements of Class Cert., Rejects Numerosity Experts

The Western District of Washington recently adopted a “preponderance of the evidence” standard for establishing the prerequisites of Federal Rule of Civil Procedure 23 and denied class certification in a TCPA case because the plaintiffs’ expert testimony did not meet the rigors of even a preponderance standard. See Southwell v. Mortgage Investors Corp. of Ohio, No. 13-1289 , 2014 U.S. Dist. LEXIS 112362 (W.D. Wash. Aug. 12, 2014).

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M.D. Fla. Rejects “Placeholder” Class Certification Motion

As we have previously noted, several courts in the Middle District of Florida have made it abundantly clear that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempt to “pick-off” a named plaintiff. See Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.) (J., Merryday); Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.) (M.J., Spaulding). Last week, the court reiterated this stance yet again. See Dickerson v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014) (J. Moody).

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Sixth Circuit Vacates Denial of Class Certification in Blast Fax Case

In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.

Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).

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N.D. Ohio Finds Putative Fax Blast Class Action Fails to Meet Commonality Requirement

A district court in the Northern District of Ohio recently denied a plaintiff’s motion for class certification in a TCPA blast fax case, finding that the proposed class failed to meet the commonality requirement under Federal Rule of Civil Procedure 23(a)(2).  Specifically, the court noted that “the proposed class includes entities that requested the facsimiles and/or had prior business relations” with the defendants and that the faxes sent to those entities did not violate the TCPA.  A copy of the opinion in Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., et al., No. 3:12 CV 2257, 2014 WL 1224418 (N.D. Ohio Mar. 24, 2014), is available here.

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Court Certifies TCPA Class Action and Subjects Defendant to Aggregate Liability After Discounting Contrary Authority

Despite a readily available forum for individual suits and the disproportionate and the potentially ruinous liability a TCPA class action presents, a New Jersey District Court nonetheless deemed a class action the superior mechanism for resolving a TCPA suit In A & L Indus., Inc. v. P. Cipollini, Inc., No. 12-7598, 2013 WL 5503303, at *5 (D.N.J. Oct. 2, 2013).  The defendant then sought reconsideration, which the District Court recently denied.

The lawsuit arose from a fax advertisement that a marketing company sent to more than 4,000 recipients on behalf of defendant Cipollini, Inc., a roofing company.  Id. at *1.  Neither Cipollini nor the marketer had obtained prior express consent from these recipients.  One of them, plaintiff A & L Industries, Inc., brought a class action alleging violations of the TCPA and other claims.  Id.

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TCPA Class Certification Denied — Necessity of Individualized Consent Inquiries Doom Certification of TCPA Class Actions

Once again, a defendant has defeated a TCPA class certification motion on the ground that the liability inquiry would require individualized inquiries into class members’ consent to receive calls, precluding a finding of predominance.

In Connelly v. Hilton Grand Vacations Co., LLC, — F.R.D. —-, Case No. 12CV599 JLS (MDD), 2013 WL 5835414 (S.D. Cal. Oct. 29, 2013), plaintiffs sued a resort properties operator alleging that its third party marketer violated the TCPA by using an ATDS to make telemarketing calls to cell phones without obtaining prior express consent.  Id. at *1.  Plaintiffs sought to certify a sprawling class of all recipients of any of 37 million calls to 6 million different numbers over a four-year period, and sought statutory damages for this would-be class “that could total between $18 and $54 billion.”  Id. at *1.

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