A recent Telephone Consumer Protection Act decision by a federal court judge in Texas is worth noting.
In Hirsch v. USHealth Advisors, LLC (N.D. Tex. Dec. 7, 2020), the plaintiff used his cell phone for both business and personal use. His number was listed on the federal Do-Not-Call Registry. According to the court, the plaintiff and has friend, an attorney, developed a plan to profit from the TCPA statute by pretending to be interested in health insurance offers with the intent to incentivize additional telephone calls from lead generators.
On different occasions the plaintiff allegedly scheduled a call with an insurance agent, only to request to be placed on an internal DNC list when the call was received.
The plaintiff sought class certification, alleging TCPA violations and that the defendant violated Maryland’s corresponding statute. The defendant counterclaimed for fraud.
The court denied the TCPA plaintiff’s motion for class certification, finding that regardless of whether standing exist to sue on his own behalf, manufactured claims do not necessarily lend themselves to class treatment given the procedural requirements of “commonality,” “typicality” and “predominance.”
To establish commonality, a plaintiff must show that there is at least one common question that will resolve a central issue in each class member’s claims. The court explained that certification under the TCPA was only appropriate where the plaintiff has advanced a viable theory employing generalized proof to establish liability with respect to the class involved.
Specifically, in rejecting the plaintiff’s legal arguments, the court determined that because some of the telephone calls may have been lawful and would require individualized, fact intensive analyses, class treatment was not warranted.
To establish typicality, a plaintiff must show that other class members have the same or similar injuries based upon the same or similar conduct. The court explained that the plaintiff’s claims were not typical because he intentionally scheduled calls with insurance agents and requested to have his number internally suppressed.
Importantly, the fraud counterclaim asserted by the defendant was not considered typical.
To establish predominance, a plaintiff must show that common questions predominate over individualized questions. Here, the court’s analysis was not dissimilar from its commonality analysis. The court also noted that “[t]his is not simply a case brought by a professional plaintiff, although it may be that too. Hirsch caused (arguably solicited) Defendants’ Agents to call him. The Court does not consider whether this meets fraud’s prima facie elements, but factually, Hirsch’s acts form this case’s inescapable foundation.”
“In this case, individual questions predominate over common questions. As noted above, only evidence specific to each class member’s consent and phone number can determine liability. Also, only evidence specific to each Agent can establish Defendants’ vicarious liability. These issues prevent a finding of commonality and, for the same reasons, prevent Hirsch from meeting the ‘even more demanding’ element of predominance,” the court stated.
The court goes on to conclude, “[t]his conclusion results from considering what a trial would look like.” The court concluded that the plaintiff and his behavior would permeate the trial and that “myriad mini-trials cannot be avoided.” “With the putative class numbering around 100,000 members, the ‘trial of this case would become this court’s life work,’” the court stated.
Accordingly, the court denied the plaintiff’s motion for class certification.
Query whether more courts will deny class certification because the supposed representative is actually a professional plaintiff.
This matter should be of interests to lead generators and telemarketers. Contact experienced FTC defense lawyers if you are interested in discussing preventative telemarketing compliance measures, or if you have been named as a defendant in a TCPA lawsuit.
See the opinion, here.
Richard B. Newman provides FTC advertising counsel at Hinch Newman LLP. Follow FTC attorneys on Twitter @ FTC defense attorneys.
Informational purposes only. Not legal advice. May be considered attorney advertising.
