In Smith v. Microsoft Corp., — F.R.D. —-, 2014 WL 323683 (S.D.Cal. 2014), Judge Sammartino denied class certification in a TCPA text-message case arising from Microsoft’s sending unauthorized text messages promoting Microsoft’s Xbox to cellular telephones in purported violation of the Telephone Consumer Protection Act.  Judge Sammartino was neutral on whether the Plaintiff’s interest was paramount and, in doing so, had some good language for defendants about the TCPA not allowing recovery of attorneys’ fees.

The TCPA allows a litigant to seek statutory damages of $500 for each violation, and potentially treble damages if the court finds the defendant to have acted willfully or knowingly. 47 U.S.C. § 227(b)(3). While this sum may sound paltry, “[t]he [ TCPA’s] statutory remedy is designed to provide adequate incentive for an individual plaintiff to bring suit on his own behalf.”   Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D.Pa.1995). Even though the TCPA, unlike many consumer protection statutes, does not provide for attorney’s fees, an alternative method of handling the instant controversy exists: namely, individual plaintiffs may bring TCPA cases in small claims court without an attorney. See, e.g., 47 U.S.C. § 227(b)(3); Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740 (2012); Cellco P’ship v. Wilcrest Health Care Mgmt. Inc., Civil Action No. 09–3534(MLC), 2012 WL 1638056, at *8 (citing 137 Cong. Rec. S16,204 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings)) (explaining that Congress intended plaintiffs to pursue their TCPA claims in state small claims courts); 137 Cong. Rec. 30,821–22 (1991).  ¶  Plaintiff contended during oral argument that small claims court is not a viable alternative forum because (1) proving the use of an automatic telephone dialing system (“ATDS”) is prohibitively difficult and costly for an individual plaintiff, and (2) small claims courts generally do not provide injunctive relief, and therefore the remedy is insufficient. (See Hr’g Tr. 16, ECF No. 82.) The Court, however, disagrees.   ¶  First, the Court believes, at least on the facts before it, that proving the use of an ATDS would not be overly difficult. On September 12, 2008, C & S had the Xbox Texts sent to 91,708 unique phone numbers. (Mot. for Class Cert. 13, ECF No. 34–1.) This raises an inference that these numbers were not individually and manually dialed.  ¶  Second, the Court is unconvinced by Plaintiff’s arguments concerning the availability of injunctive relief. Plaintiff is incorrect that injunctive relief is categorically unavailable in small claims court. While the law may vary from jurisdiction to jurisdiction, some states allow small claims courts to provide injunctive relief. See, e.g., Cal.Civ.Proc.Code § 116.220 (granting small claims courts jurisdiction over actions for injunctive relief when provided for by statute). More importantly, however, on the facts before this Court, an injunction does not seem warranted. Microsoft sent the Xbox Texts on a single day more than five years ago. Plaintiff has presented no proof that Microsoft has engaged in any other acts in violation of the TCPA in the intervening years. Thus, the Court believes that small claims court would be a realistic possibility of redress for this particular dispute, as the proposed class members have the incentive and means to bring TCPA suits on their own without expending significant resources.  ¶  On the other hand, it would certainly be easier, and therefore likely preferable, for individual plaintiffs to permit Plaintiff and proposed class counsel to litigate this issue on their behalf without having to expend any personal effort. Accordingly, the Court finds this factor to be neutral.

Judge Sammartino found, however, that the litigation management of the purported class action militated against certifying a class.

Primarily, the Court has significant evidentiary concerns. In particular, the Court believes that it may be impossible—or, at the least, certainly unduly difficult and burdensome—to resolve the issue of express prior consent. Lee v. Stonebridge Life Insurance Company, cited by Plaintiff, held that potentially individualized consent issues did not justify denial of class certification because “merits discovery should reveal [whether individuals consented].” 289 F.R.D. 292, 295 (N.D.Cal.2013). Here, however, it does not seem likely that discovery will provide the necessary answers, because the information simply no longer exists. . . . The absence of express prior consent, however, is one of the three elements of a TCPA claim, which Plaintiff bears the burden of satisfactorily establishing for the Court.  [FN2. This Court previously held, in consensus with other courts in this District, that express prior consent was an affirmative defense that the defendant bears the burden of proving. See Connelly v. Hilton Grand Vacations Co., at *3 (S.D. Cal. June 11, 2012) (citations omitted). However, as Microsoft correctly noted during oral argument, that ruling predated the Ninth Circuit’s decision in Meyer v. Portfolio Recovery Associates, LLC, which noted that express prior consent is actually one of the three elements of a TCPA claim. See 707 F.3d 1036, 1043 (9th Cir.2012) (citing 47 U.S.C. § 277(b)(1)); Hr’g Tr. 18, 34, ECF No. 82. Thus Plaintiff’s arguments to the contrary are unavailing. (See, e.g., Hr’g Tr. 13–14, ECF No. 82.)]  . . . Accordingly, Meyer mandates that it is Plaintiff’s burden to show a lack of express prior consent. Without C & S’s [Microsoft’s vendor’s] business records, however, Plaintiff simply will not be able to prove this element of his TCPA claim. And, even if Plaintiff could somehow prove a lack of prior express consent, it would nonetheless be manifestly unjust to permit more than 55,000 persons to sue a company that is, for the same reasons, incapable of defending itself. This strongly suggests that the present dispute is generally unfit for resolution via the class action vehicle. ¶  Third, the Court is concerned about identifying and providing notice to the class members as individuals, not merely numbers on a list. Before Plaintiff “scrubbed” the m-Qube List, one of Microsoft’s experts calculated that approximately 25% of the numbers were disconnected or no longer in service. (Def.’s Resp. in Opp’n 10, ECF No. 48 (sealed) (citing Expert Decl. of Prof. Scott Rifkin ¶ 9, ECF No. 46–16).) Further, because more than five years have passed, it is likely that many members of the proposed class have changed their numbers. Thus, new persons who do not belong in the class might now own numbers encompassed by the class, and persons who should be in the class may no longer own the number that received an Xbox Text. Thus, while Plaintiff has the phone numbers of people who were sent the Xbox Texts five years ago, he does not have those persons’ current information, making identification of the class members a daunting task.  ¶   Moreover, in light of the record retention policies of some of the major cellular service providers, it is likely that even subpoenaing the cellular service providers will not yield the necessary identification and contact information. (See Mot. to Strike 12–15, ECF No. 72–2 (sealed); Hr’g Tr. 48–50, ECF No. 82.) Thus, it would be extraordinarily difficult to identify the class members, communicate to the proposed class members the required Rule 23(c)(2)(B) notices, and send the proposed class members their share of any recovery. These concerns are relevant to the manageability inquiry. See Agne, 286 F.R.D. at 566. ¶  Plaintiff argues that, “to the extent … that some of the carriers don’t have that information, there are third-party services out there … that can do reverse lookups and can get [the necessary] information.” (Hr’g Tr. 23, ECF No. 82.) But as Microsoft argues in response, this still does not solve the problem, because such third-party services do not have information about subscribers’ text messaging plans, and thus the concerns identified above concerning identifying who is a member of the class remain. (Id. at 64.)  ¶  In light of the Court’s concerns, the Court finds that a class action is not the best vehicle for the resolution of this suit. Only the nonexistence of related lawsuits favors certification, and the Court believes this factor to be a weak one. On the other hand, the Court has overwhelming concerns about the impossibility of procuring necessary evidence and the manageability of this suit. The Court therefore finds that Plaintiff has failed to satisfy the superiority requirement, rendering certification of the proposed class inappropriate. Accordingly, the Court DENIES Plaintiff’s Motion.