CEB Prac. Guide § 2B.35: Class Actions

In Bank v. Icot Holdings, No. 18-CV-02554 (AMD)(PK), 2023 U.S. Dist. LEXIS 676, at *15-19 (E.D.N.Y. Jan. 1, 2023), Judge Kuo denied class certification in a TCPA class based on ascertainability grounds.  The Plaintiff's claim sounded as a "customary user" of a cell phone for which his mother was the subscriber and had been a member of a previous class… Read More

In Wakefield v. ViSalus, Inc., No. 21-35201, 2022 U.S. App. LEXIS 29228 (9th Cir. Oct. 20, 2022), the Court of Appeals held that aggregation of the TCPA’s penalties to $925 million raised due process concerns. ViSalus last argues that the Due Process Clause of the Fifth Amendment requires a reduction of the $925,220,000 statutory damages award. HN8 Whether a damages… Read More

In Costa v. Dvinci Energy, Inc., Civil Action No. 21-11501-NMG, 2022 U.S. Dist. LEXIS 130208, at *4-6 (D. Mass. July 22, 2022), Judge Gorton declined to strike a TCPA class action at the pleadings stage despite complaints that it is a "fail-safe" class. Dvinci contends that the proposed class is fail-safe—and thus must be struck—because it defines its membership in… Read More

A federal district court in Arizona has certified a nationwide “non customer” class under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) against Citibank, N.A. TCPA class actions carry enormous potential liability, as the statute provides for recovery of $500 to $1,500 per call for unconsented autodialed or prerecorded calls to cellular telephones. The case is Head v.… Read More

In Brown v. DirecTV, LLC, No. CV 13-1170 DMG (Ex), 2021 U.S. Dist. LEXIS 231014, at *15-23 (C.D. Cal. Dec. 1, 2021), Judge Gee discussed how wrong number codes might impact class certification. But that does not mean that Plaintiffs' procedure is otherwise improper—if done in the proper sequence. The Class is defined to include only non-customers, and DirecTV has… Read More

In Estate of O'Shea v. Am. Solar Sols., Inc., No. 14cv894-L-RBB, 2021 U.S. Dist. LEXIS 199171 (S.D. Cal. Oct. 15, 2021), Judge Lorenz substituted a deceased TCPA Plaintiff’s estate as Class Representative. Next, substitution may be made by a successor only if the claim is not extinguished by the death of the named party. Fed.R.Civ.P. 25(a)(1). The issue of survivability… Read More

In Smith v. Leif Johnson Ford, No. ED109494, 2021 Mo. App. LEXIS 780, at *2-5 (Ct. App. Aug. 17, 2021), the Court of Appeals affirmed certification of a "ringless voicemail" class. Smith, a Missouri resident, filed a putative class action against Ford, a Texas car dealership doing business nationwide and in Missouri. Smith alleged Ford violated the TCPA by sending… Read More

In Buell v. Credit.com, No. 4:21-cv-01055-KAW, 2021 U.S. Dist. LEXIS 142763, at *1 (N.D. Cal. July 30, 2021), Judge Westmore refused to strike TCPA class allegations following Barr v. APAC.  On April 19, 2021, Defendant Credit.com, Inc. filed a motion to strike Plaintiff Angela Buell's class allegations on the grounds that the recent United States Supreme Court decision in Barr… Read More

Usually, when the Court starts out this way, it doesn’t end well for the defendant: After Navient Solutions, LLC and its affiliate, Student Assistance Corporation ("SAC"), called Joel Lucoff's cell phone almost 2,000 times concerning his unpaid student loan, Lucoff sued Navient and SAC alleging violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. The… Read More

In Chinitz v. Intero Real Estate Servs., No. 18-cv-05623-BLF, 2020 U.S. Dist. LEXIS 224999, at *8 (N.D. Cal. Dec. 1, 2020), Judge Freeman approved a class administration plan in a TCPA class action that included "reverse lookup". First, Intero objects to TransUnion running a reverse lookup on the bases that this method is not reasonably calculated to notify class members… Read More

In Neff v. Towbin Dodge LLC, No. 2:20-cv-00261-JAM-DMC, 2020 U.S. Dist. LEXIS 217045 (E.D. Cal. Nov. 18, 2020), Judge Mendez found that a TCPA Plaintiff properly sued in his home venue. The parties agree venue is not proper in the Eastern District of California under § 1391(b)(1), as neither Defendant is a resident of California. See FAC ¶¶ 7-10; Towbin's… Read More

In Yates v. Checkers Drive-in Rest., Inc., No. 17 C 9219, 2020 U.S. Dist. LEXIS 205241, at *8 (N.D. Ill. Nov. 3, 2020), Judge Harjani ordered class notice be given by text message in a TCPA class action. Defendants, on the other hand, contend that "providing notice via text would not be appropriate in this case, as it would potentially… Read More

In Molinari v. Fin. Asset Mgmt. Sys., No. 18 C 1526, 2020 U.S. Dist. LEXIS 134045 (N.D. Ill. July 29, 2020), Judge Ellis denied class certification in a TCPA/FDCPA class action Under Rule 23(a)(2), a party seeking class certification must show commonality by identifying "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "The key… Read More

In Grant v. Regal Auto. Grp., No. 8:19-cv-363-T-23JSS, 2020 U.S. Dist. LEXIS 91897, at *7 (M.D. Fla. May 27, 2020) , the District Court certified a 'ringless voicemail' TCPA class. The plaintiff proposes administratively feasible methods for ascertaining class members. First, the plaintiff aims to use third-party records, which should determine the scope of the potential class with precision. Although… Read More

In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2019 U.S. Dist. LEXIS 183886, at *9 (D. Mass. Oct. 23, 2019), Judge Gorton denied class certification of a TCPA wrong-number class. Implicit in Rule 23 is consideration of whether the identification of potential class members is "administratively feasible." Shanley v. Cadle, 277 F.R.D. 63, 67 (D. Mass. 2011). All… Read More

In Sliwa v. Bright House Networks, No. 2:16-cv-235-FtM-29MRM, 2019 U.S. Dist. LEXIS 167805, at *56-63 (M.D. Fla. Sep. 27, 2019), the District Court denied class certification. Plaintiff identifies the following common questions of law or fact which he asserts will predominate over any individualized issues: whether (1) an automatic telephone dialing system or prerecorded voice technology was used; (2) Defendants'… Read More

In Moser v. Health Ins. Innovations, Inc., No. 17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 132790 (S.D. Cal. Aug. 2, 2019), Judge Hayes certified a TCPA class. Under the TCPA, each plaintiff was injured when an autodialed or prerecorded call was sent to their wireless or residential phone. Whether the autodialed or prerecorded call came from a device located in the offices… Read More

In Revitch v. Citibank, N.A., No. C 17-06907 WHA, 2019 U.S. Dist. LEXIS 72026, at *11-14 (N.D. Cal. Apr. 28, 2019), Judge Alsup denied class certification in a TCPA "wrong number" class action. District courts have split on the propriety of class certification in similar "wrong number" TCPA actions. Plaintiff heavily relies on a line of decisions that includes West… Read More

In McCurley v. Royal Seas Cruises, Inc., No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 52173 (S.D. Cal. Mar. 27, 2019), Judge Bashant certified a TCPA-telemarketing class. In the wake of Van Patten and McKesson, it is clear that the evidence Royal offers as evidence of consent "strongly affects" the Court's predominance analysis. McKesson, 896 F.3d at 932; see also Makaron, 324… Read More

The Court should have just denied class cert.  But, having already certified a class, the Court had to then wrestle with a class notice with regard to an unascertainable class.  In Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-cv-00934-WJ/LF, 2019 U.S. Dist. LEXIS 37724 (D.N.M. Mar. 7, 2019), Judge Johnson ignored those errors in the process and allowed a “reverse-lookup”… Read More