Testing Adequacy and Typicality: California Federal Court Restricts TCPA Defendant’s Ability to Examine Serial Plaintiff’s Sources of Income.

The TCPA was enacted to stop certain types of telemarketing robocalls, not create a cottage industry for professional plaintiffs who file hundreds of TCPA lawsuits. But as we have covered multiple times here at TCPAWorld, in reality true robocalls continue unabated while a handful of serial plaintiffs have profited off the backs of legitimate businesses making legitimate calls. Confronting class actions filed by serial TCPA plaintiffs can therefore be one of the most difficult jobs facing the defense bar. And the Southern District of California just made that job even more difficult by denying a defendant access to financial records bearing on a professional plaintiff’s sources of income. See Moser v. Health Insurance Innovations, No. 17-cv-1127, 2019 U.S. Dist. LEXIS 89216 (S.D. Cal. May 28, 2019).

Even if an individual’s status as a professional plaintiff is not a defense to a TCPA claim, it is certainly relevant to adequacy and typicality for class representation purposes. Professional plaintiffs hunt phone calls from companies that they can use to manufacture TCPA cases. That certainly is not typical of putative class members. And given their mass filings and sometimes cozy relationships with class counsel, there are real adequacy concerns regarding the ability of a professional plaintiff to represent the interests of unnamed class members.

So the defendant in Moser served extensive discovery requests against a professional plaintiff related to financial information and the history of the over 100 TCPA cases filed by the plaintiff to test adequacy and typicality. The plaintiff, not surprisingly, responded with boilerplate objections to both topics, which triggered a motion to compel. The court cultimately compelled responses to the TCPA history requests but denied it with respect to financial history.

Regarding finances and employment history, the court only required the plaintiff to identify his employers during the period in which he allegedly received phone calls from the defendant. The court did not require him identify or produce financial records, even to the extent they revealed money related to TCPA lawsuits and settlements. Instead, the court stated that the plaintiff’s deposition testimony regarding money received from TCPA cases and settlements was adequate.

The court did, however, order plaintiff to produce information regarding prior TCPA settlements and cases, including identification of all cases and demands and the amounts of any TCPA settlements. That is significant. Settlement amounts are obviously confidential and, unless part of a class settlement, virtually impossible to identify without requiring the plaintiff to do so. And the nature and amount of past settlements has obvious bearing on whether the plaintiff will adequately represent the interests of the class.

Moser is thus a mixed bag for TCPAWorld defendants. The court did require the plaintiff to produce case and settlement details that are not otherwise public, but broadly shielded the plaintiff from discovery into his finances. Fortunately, though, the order is case-specific and turned on the relevancy and burden arguments made by the defendant and did not announce a bright-line rule of the appropriateness of financial discovery. And there are multiple reasons why a plaintiff’s finances – especially a serial plaintiff’s finances – are relevant to adequacy and typicality.

If you are faced with a complaint filed by a serial plaintiff, we would be happy to discuss strategies to get this type of information with you.

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