The Telephone Consumer Protection Act of 1991 (TCPA) is a federal statute that restricts how businesses employ telemarketing efforts, like soliciting text messages or prerecorded voice messages. The law often requires consumers to express consent to receive soliciting messages and provides a private right of action for TCPA violations. For example, consumers on the “National Do Not Call Registry” can sue businesses that send them soliciting messages. The biggest defense to a TCPA claim is that the consumer provided consent to receive these messages. The nature of solicitation makes it possible for TCPA class actions to occur since businesses can reach large populations of individuals through telephone calls and text messages.

 

Dialing in TCPA Class Action Standards

Recent decisions from federal judges across the country illustrate that courts will not advance TCPA class actions unless they strictly meet the applicable standards. Federal Rule of Civil Procedure (FRCP) 23(a) allows for class action certification only when: “the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class.” Additionally, the class needs to satisfy one of the three prongs of FRCP 23(b).The most debated prong is the issue-predomination section:

The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters ​pertinent to these findings include: the class members’ interests in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action.

Significant TCPA Certification Rulings

In San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, No. 5:17-cv-03504-EJD, 2019 WL 6493978, the plaintiff sought class certification for a group of around a half million Haagen-Dazs customers that received text messages from the business after providing a phone number for a rewards program. The cashiers were supposed to inform all customers that providing a phone number would generate one text message to their cell phone. The cashier that the plaintiff interacted with failed to follow company policy and did not inform the plaintiff about the automated text message. However, the court denied plaintiff’s certification request because it did not fulfill FRCP 23’s typicality requirement arguing that the majority of the class would have received the required consent for solicitation speech from the cashier. Additionally, the judge found that plaintiff did not fulfill FRCP 23’s adequacy requirement because plaintiff had a friendship with the class attorney. The plaintiff also exhibited signs of unfamiliarity with the class claims during her deposition and the judge felt that it diminished her credibility.

A federal judge in Massachusetts also denied certification for a TCPA class action because the plaintiff did not adequately demonstrate that there were ascertainable class members and the case contained a possible consent defense. The two classes were individuals on the national “Do Not Call Registry” and those who did not provide consent for solicited calls, but who still received prerecorded calls from a medical device manufacturer. The company obtained patient phone numbers from vendors that would be at an upcoming seminar it was attending and made prerecorded calls to the vendor’s patients informing them of the seminar. The judge ruled that the class members were not ascertainable because plaintiff used unreliable methodology and weak expert testimony to determine who was eligible to be in the class. In addition, the plaintiff failed to show that common issues predominated in light of the defenses because of the possible consent defense that the company could use against the class members. All of this precluded class certification.

In Nov. 2019, an Eleventh Circuit judge decertified a class because the plaintiff failed to demonstrate standing. As with the Massachusetts case, the court in Cordoba v. DirectTV LLC, No. 18-12077 (11th Cir. 2019) concluded that common issues did not predominate individualized ones amongst the class. In that case, a telemarketing company made repeated phone calls to plaintiff (and potentially others) who asked the company to stop calling. The judge did not find sufficient standing for the class members because they did not ask the company to stop calling them. While the Eleventh Circuit in this case joined the minority view that class member standing is not a prerequisite for certification, it ruled that standing is still a factor because without it the class members could not recover damages, making it an individualized issue. 

Conclusion

These decisions exhibit a recent trend of courts cracking down on class certification requirements for alleged TCPA violations and cover an array of issues like the consent defense, issue predominance, and even standing. Attorneys attempting to certify classes under this law must understand the significance that these decisions hold for class action practice. It appears that federal judges will not allow the TCPA to open the floodgates for class action litigation. As such, plaintiff attorneys should advise their clients that ample evidence and strict compliance with FRCP 23 is necessary for successful certification. Attorneys representing businesses should gather any evidence supporting a possible consent defense. If you found this blog informative, you may enjoy reading Class Action Email Notifications: Separating The Settlements From The Spam or The Epiq Angle Blog.