Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action

The Northern District of Illinois recently granted a motion to decertify a class of TCPA plaintiffs in light of the U.S. Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), which held that the equitable tolling doctrine does not apply to successive class actions. See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL 3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed that plaintiffs can no longer “wait out” a statute of limitations and then “piggy back on an earlier, timely filed class action.” Id. at *1. Continue reading   »

Testimonial Evidence Sufficient to Defeat Class Certification: Court Denies Class Cert on Basis of Defendant’s Testimony Regarding Its Compliant Practices

The Southern District of Ohio recently denied class certification because the defendant’s unrebutted testimony—which established that its procedures ensured that faxes were only sent to those who had given their prior express permission—created individualized issues that predominated over any common ones. See Sawyer v. KRS Biotechnology, 2018 U.S. Dist. LEXIS 8595 (S.D. Oh. May 30, 2018).        Continue reading   »

Class Decertified: Wireless Provider’s Data Demonstrates Individualized Issues of Consent

The United States District Court for the Northern District of Illinois recently decertified a class after the defendant, Yahoo! Inc., submitted new evidence showing that tens of thousands of putative class members may have consented to receive the text messages at issue. See Johnson v. Yahoo! Inc., No. 14-2028 (N.D. Ill. Feb. 13, 2018).

The dispute relates to the Yahoo! Messenger service, which allows Yahoo! users to send text messages to cell phones. After a user would send an initial text message to a specific cell phone number, Yahoo! would send an additional “Welcome Message” text message to that number: “A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to y.ahoo.it/imsms.” The plaintiff alleges that these Welcome Messages violate the TCPA based on a theory that Yahoo! did not have the “prior express consent” of the “called party” (the third party to whom the Yahoo! user had sent the original text message). Continue reading   »

Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment

A recent decision from the District of Maryland denied the Defendant’s motion for summary judgment because the Plaintiff had in the Court’s view raised a genuine issue of material fact regarding whether he had revoked his consent to receive automated debt-related calls. But the Court also denied the Plaintiff’s motion for class certification for the same reason, finding that individualized issues regarding the provision and revocation of that consent would predominate over any alleged common issues. See Ginwright v. Exeter Fin. Corp., No. 16-0565 (D. Md. Nov. 28, 2017). Continue reading   »

Third Circuit Reverses Denial of Class Certification, Remands for Development of Record Regarding Ascertainability

The Third Circuit recently vacated a trial court’s decision that members of a putative class were not readily ascertainable by reference to objective criteria. City Select Auto Sales Inc. v. BMW Bank of North America Inc., 867 F.3d 434 (3d Cir. 2017). Although it did not find that a class was in fact ascertainable, it held that the trial court misapplied the ascertainability standard and remanded for further proceedings. Id. at 443. Continue reading   »

Second Circuit Affirms Denial of Certification Because Putative Class is Unascertainable, but Holds Receipt of Phone Calls Confers Standing

Last week, the Second Circuit, in Leyse v. Lifetime Entertainment Servs., LLC, affirmed the denial of class certification in a putative TCPA prerecorded message class action for lack of an ascertainable class. (We previously blogged about this district court decision.) Lifetime, concerned that viewership of its hit show “Project Runway” would suffer due to a channel change, hired a third-party vendor, OnCall Interactive, to contact New York City residents with a prerecorded message from the show’s host informing potential viewers of the channel change. Leyse v. Lifetime Entertainment Servs., LLC, No. 13-cv-5794, 2015 WL 5837897, at *1 (S.D.N.Y. Sept. 22, 2015). OnCall, in turn, purchased a list of phone numbers from an unknown third-party vendor; Lifetime never obtained that list. Id. at *2. Continue reading   »

Second Circuit Moots Class Claims Based on Offer of Judgment

The Second Circuit last week confirmed that entries of judgment satisfying an individual plaintiff’s claims moot TCPA class actions.

In Bank v. Alliance Health Networks, LLC, No. 15-cv-4037 (2d Cir. Oct. 20, 2016), the Second Circuit affirmed the dismissal of the class claims after an entry of judgment, pursuant to the defendants’ offer of judgment, rendered the class claims moot. The Second Circuit acknowledged that the Supreme Court held in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that an unaccepted offer of judgment does not moot a plaintiff’s claims. “But where judgment has been entered and where the plaintiff’s claims have been satisfied, as they were here when [the plaintiff] negotiated the check, any individual claims are rendered moot.”  Continue reading   »

Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria

In a decision that many saw as lowering the bar for class certification, the Eighth Circuit recently reversed a trial court’s decision that a putative class was not readily ascertainable by reference to objective criteria. Sandusky Wellness Center LLC v. Medtox Scientific Inc., No. 15-1317, 2016 WL 1743037 (May 3, 2016). The Eighth Circuit held that classes must be readily ascertainable, which it had yet to squarely do, but found that this particular class was ascertainable, as it included individuals who “were sent” the fax at issue and “fax logs show[ed] the numbers that received faxes.” In doing so, it rejected the argument that fax logs do not necessarily identify the “recipient” of a fax who would have standing under 47 U.S.C. § 227(b)(1). Continue reading   »

Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual

Since our December 8, 2015 blog post regarding the scope of vicarious liability, courts have continued to wrestle with the scope of vicarious liability under the TCPA and its ramifications with respect to class certification. A recent decision denying class certification based on lack of ascertainability of the class and commonality issues from the Southern District of Ohio in Barrett v. ADT Corp., No. 15-cv-1348, 2016 U.S. Dist. LEXIS 28767 (S.D. Ohio March 7, 2016), illustrates why class certification is an uphill battle in this context for plaintiffs in TCPA litigation. Continue reading   »

Court Finds Fault With Preliminary Approval Motion, Directs Plaintiff to Supplement Record

The Southern District of Alabama recently denied a plaintiff’s motion for preliminary approval of a proposed classwide settlement of TCPA claims. See Bennett v. Boyd Biloxi, LLC, No. 14-0330-WS-M, 2015 U.S. Dist. LEXIS 163987 (S.D. Ala. Dec. 7, 2015). The plaintiff claims that he and some 70,000 other people received unlawful telemarketing calls promoting the defendant’s casino, resort, and spa. Describing the plaintiff’s motion as a “somewhat pro forma” submission that did not “come close to bearing his burden of persuading the Court to certify the proposed settlement class,” the court sent him back to the drawing board “to research and effectively present the legal argument . . . needed to support certification.”

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