Business or Residential? Ambiguity Surrounding Number on Do Not Call Registry Can Defeat Class Certification

In an interesting decision from the District Court of Oregon, United States Magistrate Judge Youlee Yim You recommended granting a motion to deny class certification where uncertainty about the appropriate classification of a cell phone number’s use was enough to make the plaintiff an inadequate class representative with atypical claims.  Mattson v. New Penn Fin., LLC, No. 3:18-cv-00990, 2021 WL 1406875 (D. Or. Mar. 8, 2021).

In Mattson, the plaintiff filed a TCPA class action, claiming the defendant, New Penn Financial, LLC, called his cell phone while it was registered on the national Do Not Call Registry in violation of 47 C.F.R. § 64.1200(c).  Id. at *1.  As readers of this blog will note, 47 C.F.R. § 64.1200(c)(2) prohibits telephone solicitations made to residential telephone subscribers who are registered on the Do Not Call Registry.  New Penn sought denial of class certification, arguing the uncertainty of Plaintiff’s standing made his claims atypical, rendering him an inadequate class representative.  Id.  In considering the motion, the Court identified an issue unique to the plaintiff—whether the cell phone number at issue was properly considered a residential or business telephone number.  Id. at *5.

Finding this issue was both fact-intensive and hotly contested, the Court determined that the plaintiff’s efforts at trial would be more devoted to his own concerns in a way that would disadvantage any class.  Id. Noting that standing is a “threshold issue” in any suit, and that a plaintiff who lacks standing is “‘necessarily” an inadequate class representative whose claims are “necessarily” atypical of the class claims, the Court found it was predictable that “standing could become a major focus of the litigation” and it concluded the plaintiff was not a proper class representative.  Id. at *2-3, *5 (citations omitted).

While the plaintiff tried to argue the issue was not unique to him because it related to New Penn’s affirmative defense of consent, the Court held that the plaintiff would have to prove at trial whether the relevant phone number was residential.  Id. at *5.  In so finding, it recognized that the FCC previously stated “it would presume that wireless numbers registered on the national do-not-call registry were residential numbers,” but also stated that plaintiffs proceeding under 47 C.F.R. § 64.1200(c)(2) still “had the burden to prove that the wireless number was used as a residential number.”  Id. (quoting Lee, LLC, No. 14-CV-01084-EFM, 2016 WL 4382786, at *6 (D. Kan. Aug. 17, 2016)) (additional citations omitted).  The Court thus took this as further support that allowing the plaintiff to continue as the class representative would result in “less attention to the issue[s] which would be controlling for the rest of the class.”  Id. (quoting Koos v. First Nat. Bank of Peoria, 496 F.2d 1162, 1164-65 (7th Cir. 1974)).

Accordingly, the Court declined to consider whether individual issues would predominate over common ones under Rule 23(b)(3) because the plaintiff had already failed to establish typicality and adequacy of representation.  Id.  It therefore recommended granting New Penn’s motion to deny class certification.  Id. at *6.

This decision highlights a potential defense issue to consider for defendants subject to TCPA class actions on Do Not Call claims involving cell phone numbers.  It also is a reminder of the rocky shoals that may sink class representatives who assert highly individualized claims.

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