I’m about to head off on spring break with the kids, but before I go I had to report on this MASSIVE MASSIVE win we (well, mostly Puja) just delivered.
We really do seem to win more than any other law firm don’t we?
A pile of victories continue to add up for Troutman Firm in big-time litigation and tons of major brands are taking notice and knocking on our door for assistance. No surprise Troutman Firm (soon to be Troutman Amin, LLP) continues to GROW!
Speaking of Troutman Amin, this victory was brought in large measure by THE Amin– Puja Amin! (aka Queenie.)
So let’s get to it.
In Salaiz, Case No. 22-cv-04835-BLF, 2023 WL 2622138 (N.D. Cal. March 22, 2023) the Plaintiff alleged the Defendant had hired a third-party telemarketer to make outbound calls on its behalf. He sued seeking to represent a class of call “recipients” who had not consented to receive the calls.
Lots of problems with this approach, as the Court correctly found.
First, the allegations of the Complaint failed to establish vicarious liability. It is simply insufficient for a Plaintiff to allege calls were made “on behalf of” a seller– those allegations are meaningless. Rather the Complaint must allege facts showing either express or apparent authority or ratification.
As Queenie explained to the Court, the Salaiz complaint did not contain the needed factual allegations. It was just full of insufficient conclusions. And the Court agreed entering an order dismissing the entire complaint and all claims against our client (who wishes not to be named at this time.)
As HUGE win as that is–vicarious liability victories at the pleadings stage are pretty tough to come by in TCPAworld–the motion to strike victory is undoubtedly even bigger.
The complaint pleaded the following class:
All persons in the United States who: (1) from the last 4 years to the filing of this complaint (2) received at least one telephone call; (3) on his or her cellular telephone; (4) that used an artificial or prerecorded voice; (5) for the purpose of selling Defendants’ products or services; (6) where Defendants did not have the recipient’s express written consent prior to placing the calls.
What do you notice that’s unusual about this class?
Well, first, it looks at the RECIPIENT of a call’s consent. Yet, as anyone familiar with the TCPA knows, the consent of a person answering a phone isn’t needed–it is the consent of the current subscriber or regular user of a phone that matters. So the class is full of people who lack valid claims; i.e. those who answered a phone belonging to someone else. So the class could never be certified. And it was stricken on that basis.
But there is more here as well. Notice that there are TWO defendants. And the class definition purports to sue EACH defendant for calls made by the other defendant. That, of course, makes no sense. If one defendant made a call to sell their own products and services that the other defendant had no involvement there would be no basis for the call “recipients” to sue the other defendant. This is just sloppy drafting and the Court struck the class on that basis as well.
Finally–and most importantly–the Court agreed with Troutman Firm (well, with Queenie anyway) that a class CANNOT be pleaded based upon a merits-based criteria like consent. Whether or not a class member provided express written consent is a critical merits-based determination. In order to be deemed part of the class, therefore, a would-be class member would have ALREADY WON a massively important substantive issue. So a member of the class CAN’T LOSE on the issue of consent–which is a huge imposition on a Defendant who is entitled (per one-way intervention protections) to have the class membership determined before merits determinations are made.
As such the Court agreed “with Defendant that the language in the class definition as to consent is improper” and struck the entire class out of the complaint!
HUGE WIN QUEENIE!
There are a few take aways here:
- Troutman Firm is amazing;
- Always be mindful of the sufficiency of vicarious liability allegations at the pleadings stage in a TCPA suit. Many times the complaint will lack factual allegations and simply rely on conclusions. This is insufficient and may result in a case being thrown out;
- Queenie is incredible;
- A motion to strike is the proper vehicle to use to challenge a class definition when there is no way the class can be certified as defined. That said, do NOT use a motion to strike when you want to challenge predominance or other Rule 23 issues that are not APPARENT ON THE FACE of the complaint. Simply ineffective;
- No but really, Queenie is something special;
- A class is not properly defined when it includes a merits-based criteria for membership in the class. For instance a class that is defined based upon ATDS usage, or the absence of consent is invalid. Then again, a class that fails to account for consent at all is overly broad. A good plaintiff’s lawyer can thread that needle, but many cannot–meaning you can really jam up a class case at the pleadings stage with well-crafted motion practice;
- Troutman Firm just keeps on winning (not a guarantee of future success but, I mean, come on…)
In all seriousness, it is FANTASTIC to deliver such a great result–against a repeat TCPA litigator, no less–for a GREAT and LOYAL client. They deserve to win–and we are so pleased to have helped them to do just that.