March 02, 2015 Articles

Tactics for Defeating Class Certification of TCPA Claims

Obtaining a denial of class certification is a powerful tool that can significantly impact settlement negotiations.

By Kali Backer

Lawsuits asserting violations of the Telephone Consumer Protection Act (TCPA) continue to surge, as 2014 paved the way for some of the largest settlements to date under the TCPA. Capital One Lawsuits asserting violations of the Telephone Consumer Protection Act (TCPA) continue to surge, as 2014 paved the way for some of the largest settlements to date under the TCPA. Capital One settled its TCPA case for $75.5 million, and Bank of America settled for $32 million, for example. In re Capital One, Case No. 12 C 10064 (N.D. Ill. Feb. 12, 2015)Rose v. Bank of America Corp., Case No. 5:11-CV-02390-EJD (N.D. Cal. Aug. 29, 2014). The driving force behind these multi-million-dollar settlements is the class-action mechanism. The TCPA only authorizes $500 to $1,500 per statutory violation; however, that dollar figure quickly multiplies when considering thousands of calls or faxes. 47 U.S.C. § 227(b)(3). Class certification has become a critical stage in TCPA litigation because it gives defendants the opportunity to convert a multi-million-dollar case into a case worth as little as five hundred dollars.

To prevail on a TCPA claim, a plaintiff need only prove that (1) the defendant called or faxed the plaintiff using an automatic dialing system; and (2) the plaintiff did not consent to the call or fax. 47 U.S.C. § 227(b)(1)(A)(iii) and 47 U.S.C. § 227(b)(1)(c). However, to certify a class, a plaintiff must satisfy Rule 23’s requirements of numerosity, commonality, typicality, and adequate representation. Additionally, plaintiffs must prove that the class is ascertainable by objective measures and, for classes under Rule 23(b)(3), that common issues of law and fact predominate over individualized inquiries.

The Supreme Court’s decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011) requires courts to apply “rigorous analysis” to class-certification issues. In the wake of that decision, lower courts have subjected TCPA classes to a heightened level of scrutiny, resulting in more class-certification denials. Below are various angles of attack that have successfully resulted in denials of class certification.

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