Overcoming Rule 23 Requirements in Do-Not-Call Class Actions

Telephone Consumer Protection Act (“TCPA”) class actions are a favorite among plaintiffs’ attorneys as the statute provides up to $1,500 per violation which can easily add up to millions of dollars in damages. 

The majority of these lawsuits are private causes of action that allege violations of 47 U.S.C. § 227(b)(1), which prohibits the use of an automatic telephone dialing system (“ATDS”) or prerecorded message to make calls to cell phones without the prior express consent of the called party.  A “private” cause of action is brought by an individual or class who retains the settlement amount or statutory damages, as opposed to a “public” cause of action brought by a government agency like the Federal Communications Commission or a state attorney general.

While the TCPA also has a private cause of action for violations of the federal Do-Not-Call list, 47 U.S.C. § 227(c)(5), plaintiffs’ attorneys rarely bring class actions under this section despite the same statutory damages.  Why?

The answer lies in how class actions are approved (or “certified”) by courts.  All class actions must demonstrate that there are common questions of law or fact to the class and that common issues predominate over any issues affecting only individual members.  Fed. R. Civ. P. 23(a)(2), (b)(3).  This is difficult to prove in Do-Not-Call classes.

For example, in Southwell v. Mortg. Investors Corp. of Ohio, plaintiff alleged violations of the TCPA for making calls to persons on the federal Do-Not-Call list and a company-specific internal Do-Not-Call list.  See 2014 U.S. Dist. LEXIS 112362 (W.D. Wash. Aug. 12, 2014).  The Court denied plaintiff’s motion for class certification as to both classes because:

the Court finds that the issue of consent cannot be resolved on a classwide basis, but would instead require individual inquiries into the circumstances under which calls were placed to each potential class member. The Court cannot find, under this scenario that common questions of fact or law predominate or that maintaining the suit as a class action is superior to other methods of adjudication. For these two classes, Plaintiffs’ proof does not meet the FRCP 23(b)(3) requirements by a preponderance of the evidence.

Id. at *16.  

As the circumstances of being on the Do-Not-Call list are inherently individual for each class member, in what scenario would a Do-Not-Call list class action receive approval from a court?  Specifically, the caller would have to treat all class members in the same way, e.g. completely ignore the federal Do-Not-Call list, or “dump” its company specific internal Do-Not-Call list back into its callable numbers file.

If you have questions about how to keep you organization compliant with the TCPA, please contact us for additional information.