Duane Morris Class Action Review - 2023 - Report - Page 357
class action complaint. The plaintiff filed a motion for class certification, and the court
granted the motion. It found that the plaintiff met the requirements of Rule 23(a). The
court reasoned that the plaintiff had met her burden in showing numerosity because
testimony showed that there was an attempt to transmit the same prerecorded
messages to 4,999 telephone numbers belonging to its non-business customers. In
addition, the plaintiff produced a spreadsheet containing a list of 3,347 unique numbers
that received the transmitted prerecorded message. The court held that the plaintiff met
her burden in showing commonality by identifying three common questions that would
provide common answers to legal and factual questions for all class members,
including: (i) whether the defendant transmitted the prerecorded messages, (ii) whether
the defendant secured consent to place the calls, and (iii) whether the defendant
knowingly and willingly violated the TCPA. The court further found that the plaintiff’s
claims were typical of a class of individuals who received the prerecorded message on
their cellular telephone number and were likely based on the same legal or remedial
theory, and that the plaintiff would adequately represent the class. Further, the court
found that the plaintiff met the requirements of Rule 23(b)(3). The court reasoned that
class issues predominated over individual issues for a narrowed class consisting of
those individuals who received the prerecorded message on their cellular telephones.
Moreover, the court held that a class action would be the superior method of
adjudication because the putative class members’ claims arose from the same
standardized conduct and result in uniform damages calculated on a prerecorded voice
message basis, there was no other ongoing litigation concerning the alleged TCPA
violations by or against any class member, neither party disputed the desirability of
concentrating the litigation of this TCPA claim in the current forum, and the case was
manageable because the defendant had already provided its call logs as a starting point
for identifying potential class members.
In Head, et al. v. Citibank, N.A., 340 F.R.D. 145 (D. Ariz. 2022), the plaintiff received
100 robocalls from the defendant, a bank, over the course of three months regarding an
overdue credit account of a man she did not know. The plaintiff was never a customer of
the defendant and did not authorize the man or anyone else to open an account with the
defendant using her cellphone number. The plaintiff filed a class action, alleging that the
defendant routinely violated the TCPA by placing calls using an artificial or prerecorded
voice to telephone numbers assigned to a cellular telephone service, without prior
express consent. The plaintiff sought to certify a nationwide class of all persons and
entities to whom the defendant called in connection with a past-due credit card account,
directed to a number assigned to a cellular telephone service, but not assigned to a
current or former customer or authorized user, via an automated dialer and with an
artificial or prerecorded voice, from August 15, 2014 through the date of class
certification. The court held that the plaintiff had satisfied Rule (23)(a) and 23(b)(3) and
granted the motion. First, the court found that the proposed class satisfied the
numerosity requirement despite the plaintiff’s lack of identification of any other class
members. The court explained that the defendant did not deny that it places billions of
calls each year regarding delinquent accounts, or that millions of accounts in its system
are marked “wrong number” and that at least one unsolicited call must be placed to the
number before a telephone number is marked wrong. Moreover, the court noted that the
defendant did not dispute that it called the plaintiff repeatedly before it marked the
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Duane Morris Class Action Review – 2023
