“Not Superior”: Court Finds TCPA Class Action Lacks Predominance–And that Meritorious Claims Belong in Small Claims Court

As most readers of TCPA.World already know, the TCPA was not originally crafted to permit a private right of action in federal court. Rather the statute was created as an overlay on existing state regulations and was to serve solely as a basis to empower states to go after interstate wrong doers.

Obviously all of that is ancient history following Mims and the TCPA is currently adjudicated directly in federal court in private causes of action all across the nation.

An interesting result of the statute’s crafting, however, is that the TCPA actually contains a very right statutory damage of $500-$1,500.00 per call. The TCPA’s drafters were quite clear that the amount was set so high specifically to encourage private litigation in small claims courts.

Receive a call you don’t want? Sue the caller–but in small claims court and without the cost of a lawyer. Makes sense.

Again, whatever the TCPA’s draft’s had in mind, we live in a world of Rule 23 class litigation–for now at least–and consumer class action lawyers hate for anyone to think of the TCPA as a statute that ought to be widely enforced in small claims courts. Why?

Well in order for a case to be certified in federal court a Plaintiff must demonstrate that the class action vehicle–costly, cumbersome, time consuming, complex–is superior to private enforcement in individual suits. And since the TCPA has a huge statutory damage provision that incents private suits, and since the statute protects privacy interests–which are intensely personal in terms of their impact–permitting individuals who feel they are harmed to sue for themselves make a heck of a lot of sense.

For class action lawyers, however, that’s no good. For one thing they can’t represent all of these people–they might hire other lawyers. For another, not everyone really wants to sue over a phone call. That’s not to say there isn’t enough money in it–that’s to say, some folks just feel that bringing a federal case over the receipt of an unwanted call is, well, silly (dumb?)

To evade these issues the consumer bar has invented a little backward talk argument that has gained a ton of traction in the courts– sure the TCPA has a huge statutory damage provision, but its not enough to incentivize individuals to sue on their own behalf. And the “need” for class actions–the argument goes–is somehow proven by the fact that relatively few small claims actions enforcing the TCPA are filed.


The argument is literally–because so few individuals (relatively) file suit under the TCPA, the Court should assume everyone wants to sue.

I digress.

The point is that a new TCPA class action decision finds what really all TCPA class action decisions ought to find–that the class action is not the right way to adjudicate TCPA claims.

In Jeffrey Katz Chiropratic, Inc. v. Diamond Respiratory Care, Inc., Case No. 20-cv-04108-CRB, 2021 U.S. Dist. LEXIS 236314 (N.D. Cal.  December 9, 2021) the Court was asked to certify a junk fax class action. Traditionally these have been the most easily certifiable category of TCPA cases–the faxes are often just sent to a purchased list in cold-call style.

But in Katz the Defendant deftly came to bat with evidence that consent was obtained for some–but not all–faxes based upon its standard business practice.

Now the non-class action lawyers out there might be thinking “they really messed up by confirming that some class members received faxes without consent” but they’re dead wrong. By conceding–in essence–that consent was uneven across the class the Defendant was clever like a fox. The Plaintiff was thereby deprived of a common legal determination on the consent issue–different class members were in different circumstances on the issue of consent.

So by admitting that the Defendant would lose some (small) portion of the class member’s claims the Defendant actually helped itself win in the “big picture” sort of way.

Indeed, Defendant’s position was so compelling that not only did the Court find a lack of predominance on the issue of consent-an important but fairly common finding in TCPA class actions–the Court also found the class action vehicle was not even “superior” to individual adjudication:

[As] because meritorious individual claims might be resolved in small claims court, the class action is not “superior to other available methods for fairly and efficiently adjudicating the controversy.”

That’s a really critical–and surpassingly rare–finding in a TCPA certification order and I love to see it.

The Court went on to find that common issues also do not predominate because only faxes received on physical fax machines are actionable under the TCPA. And–as another plaintiff learned with a goose egg a while back–determining which fax recipients are using physical fax machines is virtually impossible.

So nice work Defendant and my hat is off to my buddies Ryan and Paul for their big win here. Well done fellas.


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