In Silbaugh v. Viking Magazine Services, 2012 WL 76889 (N.D.Ohio 2012), the District Court certified a class under the TCPA related to text-messages sent to cellular telephones. The facts were as follows. Plaintiff Andao Silbaugh sued Viking Magazine Services under the TCPA, which prohibits the making of a phone call to a cellular telephone using an automatic telephone dialing system without the express prior consent of the called party. Plaintiff alleged that a text message is a call under the TCPA. Plaintiff claimed that he never expressed consent to receive a phone call or text message from defendant. On February 21, 2010, plaintiff received a text message from defendant that read, “Guess what! You were qualified to receive $250 in free gift cards today ONLY! To find out more call 888–863–5570 now! TXT STOP TO STOP.” Plaintiff alleged that Defendant sent the text message using an ADAD. Plaintiff called the number and was solicited to purchase a magazine subscription service. The Complaint purports to bring the action on behalf of plaintiff and all others similarly situated who also received text message calls from defendant’s automatic telephone dialing system without giving defendant prior express consent.
The District Court rejected the defendant’s argument of a lack of commonality.
The Sixth Circuit recognizes “that the commonality and typicality requirements ‘tend to merge,’ and that ‘both serve as guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’ . . . ¶ Defendant contends that the Court would have to determine whether an ATDS was used as to each text sent to each potential class member. This Court disagrees. David Moulder, defendant’s owner, testified at deposition that all the messages were sent for Viking by its contractor, Xcel Direct, and he assumed that Xcel was using an ATDS. Defendant offers no other evidence that some, or all, of the messages were not robo-dialed. Moulder also testified at deposition that he expected Xcel Direct to obtain consents or opt-ins from the recipients for the text messages, although he did not verify this. The issue of consent is only necessary if an ATDS was being used. Additionally, plaintiff presents evidence that Jere Monda, defendant’s Marketing Director, sent Moulder an email pointing out the risks of robodialing without obtaining consent by attaching a link to an article concerning a company which sent text messages to cell phones without obtaining consent. Defendant does not dispute this evidence. ¶ Next, defendant maintains that whether there was express consent would require an individualized inquiry of each class member. Again, defendant fails to support its argument. The issue of which party bears the burden of establishing consent is a common question. Moreover, Moulder admitted at deposition that he did not have consent from any person, or take steps to confirm that consent was made. Having produced no evidence that any individual consented to receive the text messages in response to plaintiff’s presentation of Moulder’s testimony, defendant is unable to realistically argue that individual issues regarding consent outweigh the commonality. ¶ Finally, defendant contends that individual inquiry of class members would need to be made regarding whether actual injury was suffered given that it would need to be determined in each case whether the recipient was charged for the text message. Defendant points to a 1992 Federal Communications Commission (FCC) Order which stated that the TCPA prohibits only automated calls to cell phones where the recipient is charged for the call. . . . But, plaintiff satisfactorily demonstrates that every court examining the pertinent language of the TCPA has concluded that a plaintiff does not have to prove that he was charged for a call to state a claim under the TCPA, and the position of the FCC in the 1992 Order has been rejected by every court that has considered it. . . . Regardless, as plaintiff points out, the dispute presents a common issue.