A properly defended TCPA DNC case should almost never be certified.
Individualized issues lurk everywhere.
- Did consent exist to place each call?
- Did an EBR exist?
- Was the phone used for residential purposes?
- Who placed the number on the DNC list?
- Was there an inquiry?
Surmounting these–and other–issues using common evidence across an entire class is usually impossible.
And a class that is defined without taking these issues into account should ALWAYS be doomed to failure– class members will have claims of different strength turning on different evidence and their claim will not all rise and fall based on common issues.
So a class like this one should NEVER be certified:
All natural persons in the United States who, within four years preceding the filing of this case, received more than one telephone solicitation call from PGI within a 12-month period telemarketing newspaper subscriptions more than 31 days after registering their telephone number with the National Do-Not-Call Registry
In Williams v. The PISA Group, Inc. 2023 WL 2227697, Case No. 18-4752 (E.D. Pa. Feb. 24, 2023) the court certified just such a class.
The reason? As far as I can tell the Defendant failed to make an adequate showing of how differences in EBR information would lead to individual merits showings for each class member. And, if I’m right, that’s a pretty big miss.
Jumping to the punchline here–the Court found the class was “easily” certifiable because the class claims could be measured based upon the Defendant’s CRM data. But that’s the wrong analysis. More precisely it is only half of the right analysis.
Step one is, indeed, to confirm that data needed to test the class member’s claim is available. But step two is more important–assessing whether the same data exists across the entire class. But of course, it will not.
Specifically, each class member would have had a relationship that ended at a different time and in a different manner. Some class members may have had follow up inquiries after their subscription ended. And some would, perhaps, never have had a subscription at all.
Determining which groups of class members fall into each bucket is the individualized inquiries that the Defendant should have pointed to. And yes, a good Plaintiff’s lawyer with a good expert could probably have roughed it out and found a narrow class of individuals that mirrored the Plaintiff-but a huge wide ranging class of everyone that was called should NEVER have been called here.
Indeed, the mere fact that some class members received calls that were legal should INSTANTLY have destroyed commonality–there is no commonality where some class members have valid claims and some do not. So the certification process should never have gotten past 23(a) analysis, much less the more rigorous 23(b)(3) analysis.
The bad part for all of us, of course, is now this case is out there and a danger to everyone–bad precedent that other courts may follow in the mistaken belief that these sorts of cases are certifiable. No good.
Just another reminder that TCPAWorld is not for the faint of heart, or the green of horn…