Duane Morris Class Action Review - 2023 - Report - Page 358
account associated with her number “cease-and-desist,” making a clear inference that
there may be numbers not yet marked “wrong,” “no consent,” or “cease-and-desist” for
which the defendant does not have authorization to robocall. Id. at 150. Finally, the
court explained that, in light of the enormous rate at which the defendant called
delinquent accounts, it seemed “virtually impossible that [the defendant] had not
robocalled at least 40 different persons” without authorization. Id. The court also found
that the proposed class satisfied the typicality and commonality requirements, that
common questions of law and fact predominated, and that in the absence of a class
action, thousands of meritorious claims would likely go unredressed because the cost of
litigation would dwarf any possible reward under the TCPA.
Similarly, in Lenorowitz, et al. v. Mosquito Squad Of Fairfield & Westchester County,
2022 U.S. Dist. LEXIS 170384 (D. Conn. Sep. 21, 2022), the plaintiff called the
defendant, a company offering tick and mosquito control services, to sign up for
services. He remained an active customer for over two years. Two years later, after his
membership ceased, the defendant sent a ringless prerecorded advertisement message
to the voicemail boxes of 9,186 customers. The plaintiff moved for class certification
and, after proposing redefining the class to include only those who received messages
on a cell phone or residential landline, the court granted the motion. The defendant
argued that the class was not ascertainable because individual issues predominated
over common issues, that the plaintiff was an inadequate class representative, and that
a class action was not a superior avenue for putative members to pursue TCPA claims
against the defendant. The court rejected each of the defendant’s arguments. First, the
court found that the class was ascertainable because the technology for the prerecorded message is that it is delivered successfully so long as the recipient has an
operational voicemail inbox. The court held that it was sufficient under the TCPA for the
plaintiff to demonstrate that a message containing a pre-recorded voice was
successfully delivered to his voice mailbox. Second, the court held that the plaintiff was
an adequate representative despite the plaintiff and the plaintiff’s counsel’s shared
relationships, and the defendant failed to show any clear conflict of interest. Moreover,
while the plaintiff’s counsel also received the same pre-recorded message, he opted out
of the class to avoid any potential conflict. Finally, the court found that a class action
was a superior method of fairly and efficiently adjudicating the case because of the
small statutory damages – individuals would be limited to $500. Moreover, the court
noted that reliance on statutory damages awards alone to incentivize individual litigants
would lead to either needlessly clogging the courts with repetitious suits if many are
filed, or rewarding some law violators with liability for only a slight amount of total
damages if, as seems more likely, few lawsuits are filed. For these reasons, the court
granted the plaintiff’s motion for class certification.
B.
Rulings Denying Class Certification Due To Typicality
In 2022, defendants in TCPA class actions continued to succeed in defeating class
certification by demonstrating that the proposed representative was inadequate or
atypical, especially where the circumstances surrounding their consent distinguish them
from other class members.
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Duane Morris Class Action Review – 2023
