CEB Prac. Guide § 2B.35: Class Actions

In McCurley v. Royal Seas Cruises, Inc., No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 52173 (S.D. Cal. Mar. 27, 2019), Judge Bashant certified a TCPA-telemarketing class. In the wake of Van Patten and McKesson, it is clear that the evidence Royal offers as evidence of consent "strongly affects" the Court's predominance analysis. McKesson, 896 F.3d at 932; see also Makaron, 324… Read More

The Court should have just denied class cert.  But, having already certified a class, the Court had to then wrestle with a class notice with regard to an unascertainable class.  In Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-cv-00934-WJ/LF, 2019 U.S. Dist. LEXIS 37724 (D.N.M. Mar. 7, 2019), Judge Johnson ignored those errors in the process and allowed a “reverse-lookup”… Read More

In Wilson v. Babcock Home Furniture, No. 8:17-C-02739-T-02AAS, 2018 WL 6660029 (M.D. Fla. December 19, 2018), Judge Jung denied class certification in a TCPA “wrong-number” class due to lack of ascertainability or common questions of law/fact. At the most fundamental level, the parties’ experts dispute the precise amount of “wrong numbers.” Based on Plaintiff’s analysis, Defendant made 8,253 calls marked… Read More

In Brodsky v. HumanaDental Insurance Co., 2018 WL 6295126, at *5–6 (7th Cir. 2018), the Court of Appeals for the Seventh Circuit denied class certification in a TCPA Blast-Fax case. We agree with the D.C. Circuit (and the Sixth and Ninth) that, at a minimum, it is necessary to distinguish between faxes sent with permission of the recipient and those… Read More

In Lee v. Branch Banking & Trust Company, Civ No. 18-21876-CIV-Scola, 2018 WL 5633995 (S.D. Fla. Oct. 31, 2018), Judge Scola held that the SCOTUS’ decision in Bristol-Meyers did not bar the exercise of jurisdiction over non-resident putative class members in a TCPA class action. Next, BB&T argues that the Supreme Court’s recent decision in Bristol-Myers bars the Court from… Read More

In Tomeo v. CitiGroup, Inc., 2018 WL 4627386, at *9–12 (N.D.Ill., 2018), Judge Ellis declined to certify a wrong-number TCPA class. Here, Citi has put forth specific evidence establishing that a significant percentage of the putative class consented to receiving calls. Hansen intentionally avoided stating an opinion on the issue of consent in the Hansen Report, Doc. 121 Ex. 6… Read More

In Morgan v. U.S. XPRESS, Inc., CHRISTOPHER MORGAN,  2018 WL 3580775, at *2–3 (W.D.Va., 2018), Judge Moon found that a TCPA Plaintiff had to distinguish between cell phone lines and land-lines. To start, Plaintiff's characterization of the cell phone as a “residential, cellular telephone line” is not determinative of this question. These are not factual allegations, but legal terms drawn… Read More

In Reyes v. BCA Financial Services, Inc., 2018 WL 3145807 (S.D.Fla. 2018), the District Court certified a TCPA class action. On that question, the Court agrees with Reyes that she has presented an administratively feasible method of identifying class members. Although “B” flags or “WN” notations may not incontrovertibly establish that BCA dialed a wrong number, and thus would not conclusively… Read More

In Karpilovsky v. All Web Leads, Inc., Case No. 17-C-1307, 2018 WL 3108884 (N.D. Ill. 2018), Judge Leinenweber certified a TCPA class. The Plaintiffs, however, retained an expert, Young, who testified that the AWL website was not materially changed during the class period and, for that reason, all members of the proposed class experienced the same information-submission and click-through procedure when… Read More

In Lavigne v. First Community Bancshares, Inc., 2018 WL 2694457, at *7–8 (D.N.M., 2018), Judge Johnson certified a TCPA 'wrong-number' class. Plaintiff proposes that the class includes all individuals, according to Defendants records, who (1) called in to Defendants and were coded as “Bad/Wrong Number”, and were (2) subsequently called again by Defendants, and were coded as “Bad/Wrong Number.” Plaintiff proposes… Read More

In Gamble v. New England Auto Finance, Inc., 2018 WL 2446607 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that text messages sent by automobile finance company after its customer had paid her RISC in full were not subject to the RISC’s arbitration clause and class-action waiver. NEAF also argues that the Arbitration Provision is broad enough… Read More

In Makaron v. Enagic USA, Inc., 2018 WL 1311400, at *2 (C.D.Cal., 2018), Judge Pregerson certified a TCPA class against a telemarketer, finding that class-certification was not the time to determine whether an ATDS was used and that administrative feasibility is not a prerequisite to class certification. As an initial matter, the court observes that Defendant devotes a substantial portion of… Read More

In Johnson v. Yahoo!, Inc., 2018 WL 835339, at *1–4 (N.D.Ill., 2018), Judge Shah decertified a TCPA class after the defendant obtained information from a third party provider and compared it to its own records, suggesting that the means by which membership in the class would be determined would be unmanageable. The production of records from Sprint after the close… Read More

In Weller v. AT&T Corp., 2018 WL 748607, at *2–3 (E.D.N.Y., 2018), Judge Block struck a TCPA class action because the plaintiff was an inadequate class representative. Dr. Wexler concedes, as she must, that she would have had an interest in a potential fee award to her husband, had he been appointed class counsel. She argues that his withdrawal “mooted” the… Read More

In Ronquillo-Griffin v. Transition Rental Screening Solutions, Inc., 2018 WL 325051, at *3–5 (S.D.Cal., 2018), the District Court denied production of the actual class's call recordings in a call recording class action because the content was private. Plaintiffs assert that the requested audio recordings “are highly relevant to several requirements for a class certification motion,” including numerosity, ascertainability, commonality, predominance, and manageability.… Read More

In Moser v. Health Insurance Innovations, Inc., 2018 WL 325112, at *8–9 (S.D.Cal., 2018), Judge Hayes found that a TCPA Plaintiff had adequately pleaded agency allegations against a host of defendants allegedly involved in health insurance telemarketing sales.  Judge Hayes then refused to strike a host of allegations made in the Complaint regarding other complaints and sister-state actions. Allegations concerning the… Read More

In this Article, Severson & Werson partners Rebecca Saelao and Scott Hyman discuss the effect of a class action plaintiff’s dismissal of claims or damages at the instruction of class counsel in order to conform their individual claim to the claims of the putative class and, purportedly, to better their chances for class certification.   A copy of the Article can… Read More

Severson & Werson's Financial Services Practice Group's Law Bulletin on "California State and Federal Courts Have Different Class Certification Rules on Whether Putative Class-members Must Be Ascertainable" can be found here.   Read More

In West v. California Services Bureau, Inc., 2017 WL 6316823, at *2 (N.D.Cal., 2017), Judge Rogers certified a "wrong number" TCPA class.  The facts were as follows: Plaintiffs allege that defendant “repeatedly” called them on their cellular telephones using an autodialer and/or an artificial or prerecorded voice. (Id. ¶¶ 25-26, 29-30.) Plaintiffs further allege that they did not provide defendant… Read More

In Progressive Health and Rehab Corp. v. Quinn Medical, Inc., 2017 WL 6015810, at *2–4 (S.D.Ohio, 2017), Judge Marbley found that a TCPA blast-fax case was a "fail-safe" class, but striking the class allegations was premature. Defendants argue that Plaintiff's class allegations should be stricken because the proposed class constitutes a “fail-safe” class. (ECF No. 20 at 4). As a… Read More