In Madrigal v. C-Two Group, Inc., et. al, 2015 WL 8477487, at *7-8 (N.D.Cal. 2015), Judge Gilliam certified a TCPA text message class action. The facts were as follows:
C & L is the owner of the Club, and it hired C-Two Group as its manager. C-Two hired the vendor Metrowize, which is not a party to this action, to implement a social media marketing program for the Club. That program included sending text messages to individuals for whom Metrowize had maintained mobile contact information. That information was collected from individuals who signed up to be on a guest list for the Club (“Guest List”) on its website and provided their mobile telephone numbers, or who texted the word “INFUSION” to the SMS Short Code 99158 (“Club SMS”) from their mobile device. Signing up to be on the Guest List did not require providing a mobile telephone number, but texting the Club SMS necessarily provided the sender’s number. A confirmation email was sent when a patron signed up on the Guest List, and a confirmation text was sent when a patron texted the Club SMS. Each text message sent to these numbers included either “Txt STOP to cancel or HELP for help” or “Reply STOP to cancel, HELP for help.” These texts, like all of the texts at issue, were sent using software developed by the company mobileStorm, Inc, which was previously dismissed as a defendant in this action. On February 25, 2011, Plaintiff signed up to be on the Guest List for the Club by visiting the Club’s website and completing a standard form. In completing that form, Plaintiff entered her cellphone number, which was not required for any reason. In exchange for signing up for the Guest List, Plaintiff received a one-time free or discounted admission to the Club. She also received a confirmation email. Between May 26, 2011 and October 15, 2013, Plaintiff received a total of nineteen texts from the Club. Plaintiff testified that she did not consent to receiving any of these texts, but admits that she took no action to stop the texts.
The Court held that the class action mechanism was the superior way of adjudicating the mass action.
Defendants contend, however, that Congress did not intend for TCPA claims to be brought in class actions, but instead through individual suits brought in small-claims courts. Opp. at 9-11. In support of that proposition, Defendants point to a statement made during congressional debate about the bill referencing the hope that the states will “make it as easy as possible for consumers to bring [TCPA] actions, preferably in small claims court.” See 137 Cong. Rec. S16204 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings). Defendants also point to two decisions from district courts in the Third Circuit that concluded a class action was inferior to small-claims adjudication. See Forman v. Data Transfer, Inc., 164 F.R.D. 400, 405 (E.D. Pa. 1995) (“A [TCPA] class action would be inconsistent with the specific and personal remedy provided by Congress to address the minor nuisance of unsolicited facsimile advertisements.”). Defendants’ argument essentially rests on the premise that either the federal courts do not have federal question jurisdiction to hear TCPA cases or Rule 23 is inapplicable to TCPA cases. The Supreme Court rejected Defendants’ precise argument in Mims v. Arrow Financial Services, LLC, ––– U.S. ––––, 132 S. Ct. 740, 752, 181, L. Ed. 2d 881 (2012). . . .And, in concluding that federal courts can hear TCPA cases under federal question jurisdiction, the Supreme Court specifically contemplated that plaintiffs would permissibly bring TCPA cases as class actions. Id. at 753. In any case, district courts around the nation have repeatedly certified TCPA classes without concern. E.g., Lee, 289 F.R.D. at 294-95. The Court finds that a class action is superior to thousands of individual small-claims cases. Plaintiff correctly points out that that “[t]he policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Anchem, 117 S. Ct. at 2246. The fact that Plaintiff could have brought this action in small-claims court has no bearing whatsoever on the propriety of class action treatment under Rule 23(b)(3) unless it is a superior method of adjudication.