In Ryan v. Jersey Mike’s Franchise Systems, 2014 WL 1292930 (S.D.Cal. 2014), Judge Benitez granted a defense Motion to Deny Class Certification based on a conflict between the class representative’s deposition testimony and a declaration submitted by the representative in opposition to the Motion.
Movants state that Jersey Mike’s caused a pro-motional text message to be sent to the cell phones of 7,659 customers of the Solana Beach store on May 28, 2013. Plaintiff was one of the customers who received the text message. The text message advertised that “Jersey Mikes Solana” was having a double loyalty points day, and offered free chips and a drink with the purchase of any sub. (FAC ¶ 23). The message also stated “Reply STOP to opt-out of Member Texts.” (Id.) Plaintiff replied “STOP” to the message, and received no further texts beyond confirmation that no further texts would be sent. (Scherer Decl. ¶ 11).
The Plaintiff’s conflicting testimony and declaration were as follows:
Review of the Complaint indicates that Plaintiff alleges that the defendants did not have authorization to send the text message, but does not clearly indicate whether Plaintiff ever provided his phone number, or if he alleges that providing the phone number would not authorize the text messages. The provision of the phone number is an important factor, as will be dis-cussed below. Plaintiff testified under oath in a deposition concerning his phone number and how he obtained a Jersey Mike’s loyalty card. Q: Did you—did the cashier ask you for your telephone number? A: No. Q: Did you provide the cashier with your telephone number? A: No. (Ryan Dep. at 16:3–8). Q: Did you get the sandwich? A: Got the sandwich. Q; When did you get the sandwich? A: I got the sandwich. Then she handed me the card. I gave her the punch-out card. She handed me the sandwich and then handed me the card. Q: And no conversation happened, whatsoever. That’s your testimony? A: That’s my testimony. Q: How did Jersey Mike’s get your phone number? [Plaintiffs counsel]: Calls for speculation. A: I have no idea. (Ryan Dep. at 24:5–16). Q: And it’s your memory that other than taking your order for the sandwich and taking your—your card, she didn’t say anything else to you, right? A: Not to my memory, no. Q: She didn t ask you for your phone number? A: No. (Ryan Dep. at 33:13–18). Q: So it’s your sworn testimony that you never gave Jersey Mike’s your phone number? A: Yes. (Ryan Dep. at 33:25–34:2). In his Opposition to the Motion to Deny Class Certification, Plaintiff submits a sworn declaration about the provision of his phone number. (Ryan Decl., Docket No. 48–7). He states that: “I do not remember ever giving my phone number to Jersey Mikes, but I am not 100% sure. I suppose it’s possible. If Jersey Mike’s, at my deposition, would have asked me if I was “sure” that I didn’t give them my phone number at their store, I would have an-swered “no”—that I was not sure.” (Ryan Decl. ¶ 2). Plaintiff further stated that he does not have a practice of memorizing or writing down normal interactions with fast food attendants, and that he believes that this makes him a “more typical consumer, not less typical.” (Id. ¶ 3).
The District Court granted the Motion to Deny Class Certification due to questions of Plaintiff’s credibility, and issues of typicality and whether Plaintiff was adequate to represent the class.
Plaintiff now states, in his motion and in a sworn declaration, that he does not remember if he provided the number, but believes that he did not. This inconsistency and uncertainty renders class action treatment inappropriate. To the extent Plaintiff seeks, as Movants suggest, to assert claims that individuals were “spammed” without ever giving their phone number to the defendants, a class cannot be certified. Plaintiff could not represent a class of individuals who did not give out their phone numbers because he now states that he is not sure that he did not give the defendants his phone number. ¶ Plaintiff also cannot represent a class in claims based upon the fact that individuals were improperly defaulted into receiving text messages. The claims about default are premised upon the argument that default was inappropriate for people who provided their number. Plaintiff cannot argue that providing a phone number under these circumstances does not constitute consent for such advertising, while maintaining that he does not think he gave the number at all. Plaintiff’s claim cannot be typical of a class he does not believe he belongs to. ¶ Plaintiff claims that his inability to be certain makes him more typical of the average consumer. It is indeed quite possible that most people would not remember such a detail. However, although this might be typical and quite understandable, it does not make Plaintiff an appropriate representative of a class or allow him to assert the rights of others on their behalf. ¶ In determining whether the typicality requirement is satisfied, a court determines “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Wolin, 617 F.3d at 1175. Plaintiff is uncertain about key interactions which are the basis of the dispute over express consent. Even if Plaintiff learns more in discovery about the course of conduct to which other potential members of the class have been subjected, he himself is unsure whether he was injured by the same course of conduct. Discovery will not allow him to resolve the uncertainty regarding his own experience. ¶ If Plaintiff is unclear about what actions or statements he made that might constitute consent, he cannot properly litigate the question of whether other individuals consented within the meaning of the rel-evant statutes. Consent issues are at the very heart of Plaintiff’s claims. This is not simply an sub-issue for which individualized analysis could be conducted while an action proceeds based on other common issues. The question about whether Plaintiff gave his number (or not) calls into question Plaintiff’s standing to bring the claim at all. If Plaintiff gave his number, he cannot bring claims premised on the argument that people were wronged because they did not give their number. If Plaintiff did not give his number, he cannot bring claims premised on the argument that the company improperly sent messages to people who gave their number, but did not agree to text advertisements. In order to proceed with claims for text messages sent without consent, Plaintiff must assert some theory of what happened. If the class claims were not confined to individuals who had similar interactions with the Defendants, maintaining a class action would be inappropriate and unworkable. See Connelly, 294 F.R.D. at 577–78 (stating that class certification in TCPA cases is warranted only when the unique facts of a case indicate that individual adjudication of prior express consent is unnecessary and denying class certification where telephone numbers were obtained under a variety of circumstances). ¶ An inability to remember all details may be typical, but the typicality requirement of a class action lawsuit demands more. The typicality requirement exists to “assure that the interest of the named representative aligns with interests of the class.” Hanon, 976 F.2d at 508. The named plaintiff in a class action carries a great burden to adequately litigate the rights of others, and failure to properly litigate those claims can harm innocent class members. “The interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549 (1949). This Court has a responsibility to protect the legal rights of putative class members by engaging in the rigorous scrutiny required by the Supreme Court before allowing a plaintiff to represent others. Plain-tiff’s conflicting accounts of critical facts that will determine what kinds of claims he can bring means that the necessary alignment of interests is impossible. This Court cannot certify a class with Plaintiff as the named plaintiff. ¶ Although not raised by the parties, likely because the inconsistency arose in Plaintiff’s response brief, the Court notes that Plaintiff’s inconsistency on critical facts raises serious concerns about his credibility and his ability to adequately represent the class. See, e.g., Kline v. Wolf, 702 F.2d 400, 403 (2d Cir.1983) (district court reasonable in denying representative status where plaintiffs were vulnerable to serious attacks on credibility); Jovel v. Boiron, Inc., No. 11–cv–10803, 2014 WL 1027874, at *4–5 (C.D.Cal. Feb. 27, 2014) (denying class certification where plaintiff gave in-consistent deposition testimony on material issue and plaintiff could jeopardize interests of the other class members if the jury did not believe him).