The United States District Court for the District of Oregon recently issued a significant opinion regarding the legal framework for certifying Do-Not-Call claims. See Mattson v. New Penn Financial LLC, 2023 WL 8452659 (D. Or. 2023).
The genesis of the case was the alleged receipt of unsolicited calls to a cellphone number listed on the National Do-Not-Call Registry. Central to the lawsuit was the plaintiff’s motion to certify a class of individuals who had allegedly received similar calls from the defendant. Id.
The trial court denied the motion for class certification due to the individualized inquiries that would be needed to determine whether each class member’s phone number qualified as “residential” such that Do-Not-Call restrictions would have applied to that number at the time of the call. See 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c)(2). The court ruled that this individualized assessment prevented the plaintiff from satisfying Rule 23’s “commonality” and “typicality” requirements. The plaintiff then requested and received permission to appeal that decision under Rule 23(f).
During the pendency of that appeal, the Ninth Circuit decided Chennette v. Porch.com in 2022. Our regular readers will recall that Chennette introduced a significant element in Ninth Circuit TCPA jurisprudence: a rebuttable presumption that mixed-use numbers (i.e., those that are used for both commercial and residential purposes) should be considered residential for Do-Not-Call purposes. Chennette, 50 F.4th 1217, 1225 (9th Cir. 2022). As a result, the Ninth Circuit vacated and remanded the Mattson certification decision for further consideration in light of Chennette.
Some expected that the Chennette presumption would influence the Mattson case upon remand. But the trial court maintained its initial position. It reasoned that, while the Chennette presumption impacted statutory standing at the pleading stage, it did not affect the criteria for class certification. Mattson, 2023 WL 8452659, at *3. In fact, the court emphasized that the rebuttable nature of the presumption underscored that a detailed, fact-intensive inquiry would be necessary for each potential class member. This reinforced the court’s original conclusion that individual questions would predominate over any common ones. Id. at *4.
The Mattson case illustrates the complexities involved in TCPA class actions and the importance of identifying—and highlighting—individualized issues wherever they might be.