Duane Morris Class Action Review - 2023 - Report - Page 359
For example, in Bustillos, et al. v. West Covina Corp. Fitness, 2022 U.S. Dist. LEXIS
26050 (C.D. Cal. Jan. 3, 2022), a former gym member went into the defendant’s gym
and provided his phone number to an employee, who entered it into his profile. The
phone number provided was one digit off from the former gym member’s number and
belonged to the plaintiff. At one point, the defendant authorized its marketing agency to
send out a one-time pre-recorded telephone message to former members and guests
who had expressed interest in joining the gym, inviting them to join or rejoin. Most of
these individuals had provided their telephone numbers when they filled out a guest
registration or a contract with the defendant. The plaintiff was one of 1,400 individuals
that received a pre-recorded message on her cell phone from the defendant offering a
membership promotion. The plaintiff initially filed a class action alleging a single cause
of action for violation of the TCPA based on the defendant’s use of a pre-recorded
message to make a non-emergency telephone call to the plaintiff without prior express
written consent. The plaintiff did not allege or produce evidence that any of the other
messages were sent to wrong numbers. Subsequently, the plaintiff moved to certify a
class of “[t]he approximate 4,000 individuals in the United States who, on or about
February 20, 2021, were sent a call with the same or similar message as [the one sent
to Plaintiff].” Id. at *4. The court denied the plaintiff’s motion for class certification and
found that she did not satisfy Rule 23. Significantly, the court determined that the
plaintiff was not a typical, adequate representative of the proposed class because she
sought to represent a class of people who, unlike the plaintiff, provided their phone
numbers to the defendant and consented to be contacted. The court explained that the
plaintiff would likely have been a typical and adequate representative had she sought to
certify a narrower class of individuals who, like the plaintiff, had no relationship with the
defendant and received a pre-recorded message because the defendant mistakenly
recorded a wrong phone number in its system. However, the court noted that even then,
the plaintiff produced no evidence or even suggested that any other person who
received the pre-recorded message was similarly-situated, much less that the defendant
entered enough wrong numbers to satisfy the numerosity requirement of Rule 23(a)(1).
For these reasons, the court denied the plaintiff’s motion for class certification.
C.
Rulings Denying Class Certification Based On Predominance
One common reason that courts deny class certification in TCPA cases is due to
predominance of an individualized issue. For TCPA cases, one of the most powerful
affirmative defenses is showing consent to the telemarketing messages. Courts have
tended to rule in favor of defendants where they can show that a substantial portion of
the proposed class consented to the communications; the purpose and nature of each
communication varied from person to person; or identifying who provided consent and
who did not would be impractical or impossible.
For example, in Cooper, et al. v. Neilmed Pharmaceuticals, Inc., 342 F.R.D. 240 (S.D.
Ohio Aug. 9, 2022), the defendant successfully demonstrated that there was a
“presumption” that the question of consent would be individualized. In Cooper, the
defendant, a pharmaceutical company, sent a “P3990 Fax” to around 54,000 unique fax
numbers — numbers belonging mostly to physicians and physicians’ offices — over the
course of twenty-four hours. The P3990 Fax told recipients that the defendant wanted to
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Duane Morris Class Action Review – 2023
