Court denies class certification where question of who is a residential subscriber would predominate litigation

A court in the District of Oregon recently granted a defense motion to deny class certification, largely because the issue of whether the putative class representative’s phone number was “residential”—a prerequisite to TCPA protection—would predominate the litigation.

In Mattson v. New Penn Financial, LLC, the district court considered plaintiff’s objections to the magistrate judge’s findings and recommendation regarding defendant’s motion to deny class certification. No. 3:18-CV-00990-YY, 2021 WL 2888394, at *1 (D. Or. July 9, 2021). The magistrate judge had concluded that plaintiff was an inadequate class representative because questions remained concerning whether he alleged a sufficient injury in fact to bring a TCPA claim, and also because issues individual to the plaintiff would predominate the litigation.

With respect to commonality and typicality, the magistrate judge reasoned that the hotly contested issue of whether plaintiff’s number was residential (or a business line) would take his attention away from issues that would be controlling for the rest of the class.

Similarly, with respect to Article III and adequacy, the magistrate judge reasoned that although it was not necessary to conclude whether plaintiff lacked standing, the question of whether he had standing raised additional concerns for his adequacy for representing a class. For all of these reasons, the magistrate judge recommended that the district court grant defendant’s motion to deny class certification.

The district court disagreed with the magistrate judge’s conclusion that questions remained as to whether plaintiff had Article III standing. Citing Spokeo, the district court explained that “Plaintiff personally suffered an injury in fact when he received an unwanted call from Defendant on what Plaintiff alleges was his residential phone number after Plaintiff placed it on the national Do Not Call Registry (DNCR).” Id.

But the plaintiff’s victory was short-lived. The district court stated that whether “Plaintiff meets the requirements of Rule 23 is a different question from whether he has Article III standing,” and summarily adopted the magistrate judge’s conclusion with regard to commonality, typicality, and adequacy because “individual questions concerning whether he is a residential subscriber subject to the TCPA’s protections will predominate the litigation.” On this basis, the district court adopted the magistrate judge’s findings in part and granted defendant’s motion to deny class certification.

It is also worth noting that the district court adopted the magistrate judge’s conclusion that it was proper for the defendant to move for denial of class certification. In doing so, the magistrate judge rejected plaintiff’s argument that the issue of whether plaintiff’s number qualified as “residential” is an issue of consent, and therefore an affirmative defense for defendant to prove—rather than an element of plaintiff’s case.

This decision highlights a potential hook for defendants to oppose class certification where there is a basis to contest that the alleged calls were made to residential numbers.

Justin O. Kay

About the Author: Justin O. Kay

Justin Kay advises and defends business clients regarding their interactions and communications with consumers. He appears regularly on behalf of clients before federal and state courts, federal agencies and independent self-regulatory bodies, such as the National Advertising Division of the Better Business Bureau. Justin’s practice focuses on defending clients in the growing number of complex class actions arising under federal and state consumer protection and privacy laws such as the federal Telephone Consumer Protection Act, the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act. He is a deputy leader of the litigation practice group.

Renée M. Dudek

About the Author: Renée M. Dudek

Renée Dudek is a litigator and appellate lawyer who helps clients resolve commercial and business disputes, especially in high stakes and complex matters. Renée is experienced with pre-litigation counseling, discovery, dispositive motions, trials, post-trial proceedings and appeals. She is especially familiar with federal courts within the Third Circuit and with Delaware state courts. Renée maintains an active pro bono practice focused primarily on civil rights matters and serves as co-chair of the firm’s Business Litigation Wellness Committee.

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