TCPA Class Action Review – 2025

the level of intrusion upon seclusion, which necessitates a showing of an “unreasonable and substantial or serious” invasion of the plaintiff’s privacy. Id. As a result, the need for individualized inquiries into the severity of privacy intrusions experienced by each class member would outweigh the common issues, thereby making class certification inappropriate. On appeal, the First Circuit vacated and remanded the district court’s ruling. The First Circuit explained that the receipt of unwanted debt collection calls was sufficient to constitute invasion of privacy. Id. at *11. Thus, it opined that the plaintiff’s call might constitute “common proof” of each class member’s privacy being invaded by the defendants. Id. Accordingly, the First Circuit remanded to the district court for further fact-finding on the sufficiency of proof of the call records as “common proof” of class-wide legal and factual issues (in addition to consideration of the remaining class certification factors). The decision to vacate and remand emphasizes the importance of common evidence in considering class certification. The court’s holding in Mantha, et al. v. Quotewizard.com, LLC, 2024 U.S. Dist. LEXIS 152987 (D. Mass. Aug. 16, 2024), underscores the efficacy of class actions in the TCPA context. In this case the plaintiff filed a class action alleging that the defendant violated the TCPA by sending unsolicited telemarketing messages to his phone, which is listed on the national Do-Not-Call registry. The plaintiff asserted that he received multiple messages from the defendant between August 9 and August 23, 2019, despite having taken steps to prevent such communications. The plaintiff filed a motion for class certification pursuant to Rule 23, which the court granted. The defendant attempted to exclude the testimony of the plaintiff’s expert witness, Anya Verkhovskaya, but the court denied this request. The plaintiff’s proposed class included all individuals in the U.S. whose residential numbers were listed on the National Do Not Call Registry (NDNCR) and who received more than one telemarketing text message within a 12-month period from the defendant’s services via a platform called Drips. Id. at *10. To support this definition, Verkhovskaya created a class list using standard data analysis techniques. Rather than attempting a comprehensive identification of all eligible phone numbers, she focused on a subset by narrowing down the class to avoid potential legal and factual issues. Id. at *11. The methodology involved a four-step process, including: (i) elimination of internal numbers; (ii) an authorization check; (iii) verification of text recipients; and (iv) a final verification that the remaining numbers were on the NDNCR, received multiple texts within a year, and were confirmed as residential. Id. at *12. Through this analysis, Verkhovskaya identified 66,693 phone numbers that met the criteria, to which the defendant allegedly sent 314,828 text messages. Id. The court found her expert analysis reliable and the methodology sound, and thus, the court denied the motion to exclude Verkhovskaya’s expert opinion. Regarding the plaintiff’s motion for class certification, the court found that the plaintiff sufficiently demonstrated that all potential class members experienced the same injury, i.e., that the defendant violated the TCPA by sending multiple unsolicited texts to numbers on the NDNCR. Id. at *31. The court also determined that the plaintiff sufficiently identified several common questions of law and fact relevant to all members, including whether their numbers were on the NDNCR, whether they received the texts, and if they provided prior consent to receive such communications. Id. at *32. The court also stated that the plaintiff established common issued to the class which predominated over individual concerns. The evidence, including expert testimony and the defendant’s internal documentation, indicated that the core aspects of the case — such as the classification of numbers and the nature of the texts — could be established through class- wide proof. Id. at *41. Ultimately, the court concluded that the plaintiff sufficiently established that a class action would be the superior method for resolving the dispute, given the relatively low statutory damages per violation, which makes individual claims economically unfeasible. The absence of other ongoing litigation regarding these issues and the manageable nature of a class action further supported certification. Accordingly, the court granted the plaintiff’s motion for class certification. 2. Rulings Denying Class Certification The plaintiff in Sharfman M.D.P.A., et al. v. Precision Imaging St. Augustine LLC, 2024 U.S. Dist. LEXIS 92659 (M.D. Fla. May 23, 2024), filed a class action alleging violations of the TCPA after receiving four unsolicited fax advertisements from the defendants, both imaging and radiology services providers. The plaintiffs contended that the defendants sent the unsolicited fax advertisements without the necessary opt-out information and without prior consent. The plaintiff filed a motion for class certification, and the Magistrate Judge recommended denying the motion. The Magistrate Judge found that, while plaintiff sufficiently alleged ascertainability, numerosity, and commonality, the plaintiff failed to meet the requirements for typicality and adequacy of representation. Id. at *7. Additionally, the court stated that the plaintiff failed to establish predominance and superiority. Id. On the issue of typicality, the court explained that the plaintiff’s claims would require highly individualized inquiries regarding prior express permission to receive the faxes, as the defendants identified

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