So one of my favorite cases of the year so far was Rombough v. State Farm. You can read it here: https://tcpaworld.com/wp-content/uploads/2022/07/Rombough.pdf
There it was held that a Plaintiff cannot sue for DNC violations unless they personally registered their number on the national DNC list.
I love that rule because it makes certifying a NDNCR class basically impossible–there is no way to know which folks on the DNC actually registered their numbers and which simply inherited numbers that were already registered. Really good class action killer.
Well in Watson v. Manhattan Luxury Automobiles, 2022 WL 4586407 (S.D.N.Y. Sept. 29, 2022)the court decided class actions must not be killed.
In Watson an auto dealership closed down and basically sold its customer list to another dealership that decided to call and text the previous dealership’s customers. Probably not a good idea. Rather obviously the EBR with the first dealership does not transfer to the second dealership. So second dealership is in a heap of trouble with regard to numbers on the national DNC list.
This is where Rombough could have come in handy. But it didn’t. The Court REJECTED the argument that class members had to register their own numbers on the DNC. Instead it found that everyone on the NDNCR could bring suit.
Matters get worse.
Since the Dealership had no real basis to claim any form of consent or an EBR the court elected to CERTIFY the case. Eesh.
One interesting side note in this one–how the court dealt with experts.
The Defendants challenged the expert reports from “our friends” Snyder and Anya. The Court overruled the objections to Anya’s report but sustained the objections to Snyder’s “Defendant used an ATDS” opinion. On the other hand the Court also struck Sponslor’s opinions that Defendant didn’t use an ATDS and that no database exists to determine whether a text was opened (court found the latter opinion didn’t matter.)
Unrelated, as I teased earlier be on the lookout for HUGE news today. Also be sure to check out episode 5 of Deserve to Win with Mike Greenwald!: