I am famous for my work ethic and my legendary ability to get things done.
But I am also famous for critiquing the legal work of other firms. Most of the time that involves a decent dose of criticism–as my 10 year old says “most of the time ‘the truth’ is an insult”– but from time to time some outstanding legal work comes along and I will stand up and applaud.
Happy to have one of those times now.
In Trim v. Mayvenn, 2022 WL 17584237 (N.D. Cal. 12/12/2022) the Defendant earned a GREAT ruling on an affirmative motion to deny certification, ending the prospects for a crushing judgment on a classwide basis.
Let me just say, very few law firms would even ATTEMPT an affirmative motion to deny certification. While I’ve won a few of these over the years it is a fairly rare procedure that only top attorneys (IMO) bring to the field. So I was already impressed by the procedural posture alone here.
But then you dig in and there is even more good stuff in here.
Mayvenn–my kid’s name is “Maven” so obviously I like this case even more now– argued that Trim used his phone for business purposes. And even after Chenette that a question of fact existed respecting Plaintiff’s use of his phone. That–the argument goes–makes him atypical of the class.
Notice this is a daring salvo. If the court found there was no such question of fact the issue may have been determined–substantively–at the certification stage. But Mayvenn was confident in its position–and it paid off!:
Where, as here, the proper classification of a named plaintiff’s cellular phone number creates a triable issue of fact, a number of district courts have found the named plaintiff cannot establish typicality under Rule 23(a) and, consequently, have found certification of an NDNC Registry class is not appropriate. See, e.g., Mattson v. New Penn Fin., LLC, No. 3:18-CV-00990-YY, 2021 WL 1406875, at *5 (D. Or. Mar. 8, 2021), report and recommendation adopted in part, 2021 WL 2888394 (D. Or. July 9, 2021) (granting defendant’s motion to deny certification of NDNC Registry class; finding genuine issue of material fact as to “whether the subject number is a residential or business phone number … may well result in less attention to the issue which would be controlling for the rest of the class” and “could become a major focus of the litigation” (internal quotations, citations, and alteration omitted)); Cunningham v. Vivint, Inc., No. 219CV00568DBBCMR, 2022 WL 2291669, at *8 (D. Utah June 24, 2022) (granting motion to deny certification of NDNC Registry class; finding named plaintiff’s “claims would not be typical of the class if his number is a business number rather than a residential number”). The Court finds the reasoning of such authorities persuasive, and, having found a triable issue of fact as to whether Trim qualifies as a “residential subscriber” for purposes of her NDNC Registry claim, (see April 5 Order at 8:23-24), concludes Trim has not met her burden under Rule 23(a)(3).
But it gets even better.
Through some nifty sleuthing, Mayvenn determined the Plaintiff had used his number for business purposes that Trim did not disclose in discovery. And that is a big no no:
Here, Mayvenn contends, Trim has “serious credibility problems” on issues “go[ing] to the heart of the litigation” (see Mot. at 20:12; 20:26), and, in support thereof, highlights multiple contradictions in Trim’s testimony pertaining to whether and to what extent she uses her personal cell phone number for personal and/or business purposes. In that regard, although Trim testified at her deposition that she uses her personal cellphone number for sales calls to prospective customers (see Dep. Of Lucine Trim at 77:4-19),5 she thereafter submitted, in opposing Mayvenn’s Motion for Summary Judgment, an affidavit averring she “make[s] those sales calls” using a telephone number her “work provides” (see Aff. of Lucine Trim ¶¶ 4-6).6 Further, during an appearance as a guest on a videotaped program in which she was identified as an employee of Impact Merchant Solutions, Trim provided business tips and, while her personal cellular phone number flashed across the screen, invited viewers to “text or call” her. (See Burshteyn MSJ Decl. Ex. F.) Later, however, when, in an interrogatory, she was asked to “[s]tate … all instances where [she] listed [her] cellphone number in directories, postings, social media, or any public forum or media related to [her] work[,]” Trim stated “there are no [such] instances to identify” (see Pl. Resp. to Mayvenn’s Third Set of Interrog. at 2).
Most lawyers–I am sad to report–likely would not have determined the undisclosed uses of the phone that Mayvenn dug up, and fewer still would have constructed the credibility challenge to destroy typicality and adequacy that animated the result. So, again, excellent work.
And beyond the complexity of the motion–this result shows real engineering and creativity. It was Troutmanesque, dare I say. And that’s pretty much the highest compliment I can bestow.
Nice work guys!
Happy Wednesday TCPAWorld.