Duane Morris Class Action Review - 2023 - Report - Page 364
one-way intervention rule generally “precludes [class] certification” after a plaintiff has
already “acquir[ed] a favorable ruling on the merits” because “[a]llowing class members
to decide whether or not to be bound by a judgment depending on whether it is
favorable or unfavorable is . . . unfair to the defendant.” Id. at *31 n. 1. The court opined
that the rule is meant to protect defendants and, thus, a defendant may voluntarily forgo
the rule’s protections and “moot” the class certification issues by moving for – and
obtaining – summary judgment before the court decides whether to certify the claim as
a class action. Id. Because the court granted the defendants’ summary judgment
motion, the plaintiff’s motion for class certification was deemed moot, and thus the court
ruled that the one-way intervention rule does not apply.
In Lindenbaum, et al. v. Realgy, 2002 U.S. Dist. LEXIS 101813 (N.D. Ohio June 7,
2022), the court allowed the parties to brief the issue – of whether the defendant or its
agent placed the two telephone calls at issue – prior to addressing class certification.
Factually, this class action arose because the defendant or its agent placed two
allegedly illegal robocalls to the plaintiff. Specifically, the plaintiff received an unsolicited,
pre-recorded telephone call to her cellular telephone number, and upon answering the
call, the plaintiff heard a recorded voice discussing her electric bill. The recording
instructed the plaintiff to press one in order to be connected to a live operator; she did
so and spoke with a man who asked her about her electric bill and personal information.
After filing the class action, the plaintiff received a call to her land line; again, the plaintiff
pressed one and was connected to a live operator who again asked the plaintiff for her
personal information. For both calls, the operator identified himself as calling from
Realgy. The defendant asserted that he could not be held vicariously liable for the
actions of the unidentified caller. The plaintiff opposed the defendant’s summary
judgment motion by asserting that the identity of the caller is a genuine issue of material
fact. In support of its motion, the defendant provided proofs that it did not have the
capability to send the “press one” recorded messages as the plaintiff alleged, regularly
keeps records of all outbound calls it made (and that there are no records of the
defendant ever directly calling the plaintiff), and contracted with a marketing company to
run a telemarketing campaign on the defendant’s behalf. In response to the defendant’s
proofs, the plaintiff offered no admissible evidence in rebuttal. The defendant also noted
that an energy provider, competitor, or scammer seeking financial information would be
the type of entity asking the plaintiff about her electric bill and personal information.
Regarding the issue of agency, although the defendant offered an affidavit from its
marketing company that averred that it did not place the telephone calls at issue, the
court opined that the plaintiff offered no admissible evidence in rebuttal. Thus, the court
granted the defendant’s motion for summary judgment because of the lack of evidence
that an agent of the defendant made the prohibited call.
Since Duguid, TCPA class actions have focused claims on theories such as, for
example, TCPA liability arising from the Do Not Call (DNC) list. For example, in
Johansen, et al. v. EFinancial, 2022 U.S. Dist. LEXIS 8798 (W.D. Wash. Jan. 18, 2022),
the court granted the defendant’s summary judgment in a putative class action lawsuit.
The plaintiff alleged that the defendant contacted him without his express consent at a
number that the plaintiff had registered on the DNC list. The defendant asserted that
that plaintiff had consented to being contacted and even if he had not consented, the
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Duane Morris Class Action Review – 2023
