Duane Morris TCPA Class Action Review – 2024

a “single power dialer provided by a company call[ed] Xencall” to pitch its services. Id. The plaintiff alleged that the defendant called her at least three times without her consent even though her number was on the NDNCR. Id. The court determined that the plaintiff did not carry her burden to show that she was a typical or adequate representative of the class. Id. at *12. The plaintiff sought to represent class members who: “hope[d] and expect[ed] that his or her privacy would be respected and not invaded by unwanted [phone calls]” from the defendant. Id. at *7. Significantly, the plaintiff left the defendant a voicemail asking for a return call and then spoke with the defendant ’ s representative about the services. Id. at *7-8. The court concluded that, if the plaintiff asked the defendant to contact her, then the plaintiff was not a typical or adequate representative of class members who asserted that they did not consent to the defendant contacting them. Id. at *8. Because these facts were unique to the plaintiff, the court determined that the litigation would have a “skewed focus and diversion of resources” that may benefit the plaintiff, rather than other class members. Id. at *10. The court also considered whether the plaintiff ’ s unique circumstances could deter her from vigorously prosecuting the claims of the class members, and that the plaintiff ’ s weaker claim could give her an incentive to settle for a lower amount than might be considered for the stronger claims. Id. For these reasons, the court denied the plaintiff ’ s motion for class certification. Another ruling this past year in which a court denied class certification under Rule 23 was Bank, et al. v. ICOT Holdings, LLC, 2023 U.S. Dist. LEXIS 41898 (E.D.N.Y. Mar. 13, 2023). However, as compared to Wiley, the court denied the motion for failure to meet the adequacy requirement of Rule 23 as composed to typicality. Id. at *7. In Bank , the plaintiff filed a class action alleging that the defendant violated the TCPA when he answered prerecorded phone calls promoting hearing aids called to his mother ’ s phone, which was on the National Do Not Call Registry. Id. at *3. The plaintiff filed a motion for class certification, and the Magistrate Judge recommended that the motion be denied because a class of non-subscribers such as the plaintiff was not ascertainable. Id. at *2-5. The court adopted the Magistrate Judge ’ s recommendations and denied the motion for class certification. Id. The plaintiff did not dispute that such a class was not ascertainable, but contended that the “unnamed class members would be the subscribers” to the numbers on the defendants’ list. Id. at *4. The court noted that a class consisting solely of subscribers might be ascertainable, but the plaintiff would not be an adequate representative as a non-subscriber himself. Id. at *5. The court explained that it was not settled under circuit case law whether a non-subscriber like the plaintiff – who did not live with the subscriber but visited regularly – was a “called party” under the TCPA. Id. Under these circumstances, the court ruled that resolving that issue would take up too much of the litigation at the expense of the class members. Id. For these reasons, the court denied the motion for class certification. The court also denied in part a motion to strike class allegations in Zoulek, et al. v. Gannett Co., 2023 U.S. Dist. LEXIS 87109 (E.D. Wis. May 18, 2023). The plaintiff filed a class action alleging that the defendant called her at least 17 times, in violation of the TCPA, in an attempt to get her to resubscribe to the Milwaukee Journal Sentinel. Id. at *1. The plaintiff sought certification of two nationwide classes comprised of similarly affected individuals. The defendant moved to strike the class allegations, arguing that the plaintiff ’ s claims were not typical to those of the claims of the putative class members, and that the plaintiff was not an adequate class representative. Id. at *5. The court granted in part and denied in part the motion. The court granted the motion to strike with regard to allegations related to a potential Rule 23(b)(2) class, as the complaint sought monetary relief, and thus class certification under Rule 23(b)(2) was not appropriate. Id. at *6. The court denied the motion to strike the remaining class allegations under Rule 23(b)(3) because it was premature at this stage of the litigation to conclude that individual inquiries would predominate over common questions of law or fact. Id. at *6. The court ruled that concerns about the plaintiff being an atypical or inadequate representative for the Do Not Call Registry Class were also premature because the class allegations were plausible. Id. at *11. Accordingly, the court granted the defendant ’ s motion to strike class allegations related to Rule 23(b)(2), but denied it for the remaining class allegations under Rule 23(b)(3). Finally, in True Health Chiropractic, Inc., et al. v. McKesson Corp., 2023 U.S. App. LEXIS 28346 (9th Cir. Oct. 25, 2023), the plaintiffs filed a class action alleging that the defendant sent junk faxes in violation of

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