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.
Michael Daly
Articles by Michael Daly:
Court Lets Debt-Collector Amend Answer and Assert Counterclaim for Plaintiff’s Debt
In a TCPA class action case concerning debt collection calls, the Southern District of California recently granted a debt-collector defendant’s motion to file an amended answer and assert a counterclaim for breach of contract arising from the plaintiff’s approximately $22,000 debt for the purchase of a used vehicle. See Horton v. Calvary Portfolio Servs., LLC, No. 13-cv-0307, 2014 U.S. Dist. LEXIS 102569 (S.D. Cal. July 24, 2014).
Court Lets Plaintiff Revive Mooted Claims In Second Action Against Same Defendants
The Eastern District of New York recently denied a motion to dismiss and found that the plaintiff’s claims were not precluded by a different court’s ruling that the same claims against the same defendants had been mooted by an offer of judgment. See Bank v. Spark Energy Holdings, No. 13-6130, 2014 U.S. Dist. LEXIS 84493 (E.D.N.Y. June 20, 2014); Bank v. Spark Energy Holdings, No. 11-4082, 2013 U.S. Dist. LEXIS 150733 (S.D. Tex. Oct. 18, 2013).
TCPA Plaintiffs Take Aim at the Sports World
Virtually every customer-facing industry has faced TCPA class actions and sports franchises are no exception. In the past few months, both the Los Angeles Clippers and the Buffalo Bills have settled TCPA suits that relate to text messages.
The Clippers recently agreed to settle a TCPA class action that relates to the alleged dissemination of promotional text messages without the requisite consent. Specifically, in Friedman v. LAC Basketball Club Inc., No. 13-0818 (C.D. Cal.), the plaintiff claimed that he received promotional messages after he sent the team a text message that he wanted it to display on its scoreboard during a game.
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FCC Denies Petition To Change Its Rules So That It Could Preside Over Class Actions
The FCC recently denied a petition that had asked it to amend its rules so that it could preside over class actions. Although the Petition did not mention the TCPA, it would not have taken long for plaintiffs to create a new front of TCPA litigation had the Petition had been granted.
Court Dismisses TCPA Action Because Plaintiff Refused to Plead Her Telephone Number
On April 17, Judge Robert Bell of the Western District of Michigan found that a plaintiff does not state a claim under the TCPA if she does not plead the telephone number at which she allegedly had been called. See Strand v. Corinthian Colleges, Inc., No. 13-1235, 2014 U.S. Dist. Lexis 52963 (W.D. Mich. Apr. 17, 2014). The decision is a welcome one for defendants who have encountered counsel who only disclose a plaintiff’s telephone number as part of reciprocal (and inevitably asymmetrical) discovery.
Court Finds That System Is Not An ATDS Unless It Can Generate (As Opposed To Merely Dial) Numbers On A Random or Sequential Basis
Judge Baylson of the Eastern District of Pennsylvania recently granted Yahoo! summary judgment in a case challenging Yahoo’s automatic email to text alert system because it did not use an automatic telephone dialing system (“ATDS”) when it forwarded emails as text messages. In doing so, he applied the plain meaning of the statutory definition of ATDS, rejected an FCC opinion that had purported to broaden it, and disagreed with Judge Curiel in the Southern District of California, who denied a similar motion by Yahoo! just weeks ago. See Dominguez v. Yahoo!, Inc., No. 13-1887, slip op. (E.D. Pa. Mar. 20, 2014); Sherman v, Yahoo!, Inc., No. 13-0041, slip op. (S.D. Cal. Feb. 3, 2014). The decision is important because it limits the definition of ATDS to those systems that can generate (as opposed to merely dial) a list of numbers on a “random or sequential” basis.
Court Finds That Vendor of VoIP Service That Circumvents Caller Identification is Not Secondarily Liable for Caller’s TCPA Violations
A federal court recently held that a vendor of a VoIP service that allows callers to circumvent caller identification is not secondarily liable for the alleged TCPA violations of the caller that uses that service. See Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014).
JPML Centralizes TCPA Class Actions in the Northern District of West Virginia
The Judicial Panel on Multidistrict Litigation (JPML) recently centralized four putative class actions asserting that the defendants (Monitronics International, Inc. and its agents) violated the TCPA by making telemarketing calls to numbers on the national Do Not Call Registry or to persons from whom they did not have consent. See In Re Monitronics International, Inc., Telephone Consumer Protection Act Litigation, MDL No. 2493 (Dec. 16, 2013). A copy of the JPML’s decision is available here.
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Plaintiff Withdraws Appeal Before Ninth Circuit Can Review Order Dismissing TCPA Class Action
As we previously reported, Plaintiff David Emanuel recently took an appeal from the Central District of California’s dismissal of a class action asserting that the Los Angeles Lakers violated the TCPA by sending text messages without the recipients’ consent. The trial court dismissed the case with prejudice after finding that the plaintiff had consented to the text message by sending the Lakers a text message of his own, and had parroted the definition of an ATDS rather than pleaded any facts tending to show that the Lakers had actually used one. See Emanuel v. L.A. Lakers, Inc., 12-9936, 2013 WL 1719035 (C.D. Ca. Apr. 18, 2013). The plaintiff then took an appeal in which Twitter and Path filed a notable amicus brief that railed against the veritable cottage industry of plaintiffs’ lawyers that is transforming “a statute intended to curb vexatious telemarketing” into a “vehicle for vexatious lawsuits.”
On New Year’s Eve, the plaintiff filed short “Notices of Settlement” informing both the trial court and Ninth Circuit that “this case has been settled in its entirety, on an individual basis” and that “the parties anticipate filing a Joint Motion for Dismissal with prejudice as to the named plaintiff and without prejudice as to the putative class within 45 days.” As of today, no such Motion appears on the Ninth Circuit or Central District of California dockets and (not surprisingly) the terms of the individual settlement have not been disclosed. So while the Central District of California’s decision still stands, a Ninth Circuit decision adopting its reasoning will unfortunately have to wait for another day.