TCPA Class Action Review – 2025

plaintiff failed to show a material change in circumstances occurred in the time since the first certification motion that warranted revisiting the court’s initial ruling on class certification. Id. at *8. Additionally, the court reasoned that in submitting new arguments and evidence with the second motion for class certification, the plaintiff did not contend that the newly-included arguments and evidence were not available to him at the time of the filing of the first motion. Id. at *9. For these reasons, the court denied the plaintiff’s motion for reconsideration. In Van Elzen, et al. v. Advisors Ignite USA LLC, 2024 U.S. Dist. LEXIS 9079 (E.D. Wis. Jan. 18, 2024), the plaintiff, an insurance agent, filed a class action alleging that the defendant, a marketing company, sent unauthorized voicemails to agents regarding marketing events, such as live insurance seminars, in violation of the TCPA. The plaintiff asserted that Advisors Ignite transmitted more than 15,000 prerecorded ringless voicemail messages to agents. The plaintiff filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The proposed class consisted of thousands of members, which the defendant did not dispute. The court stated that while there is no bright-line rule for numerosity, a class of more than 14,000 was clearly sufficiently numerous under Rule 23(a)(1). Further, the court determined that the plaintiff proposed a way to identify members of the proposed class and had limited their geographic dispersion by including only telephone numbers of certain area codes. The court noted that judicial economy would be served to avoid a multiplicity of actions. The court also opined that the plaintiff met the commonality requirement because he asserted only a single claim under the TCPA, and the violation was common to every member of the proposed class. The defendant argued the alleged phone calls were exempt from TCPA liability because they were “made with the prior express written consent of the called party.” Id. at *8. The defendant contended that class members could have established their consent to receive calls in numerous ways. However, the court stated that the defendant did not present any evidence that the plaintiff, or any class member, provided consent to prerecorded voicemail messages or that either it or the companies from which it purchased its lists of insurance agents obtained such consent. Id. at *10. The court opined that the undisputed evidence suggested that neither the defendant nor the vendors from whom it obtained the lists, ever sought consent to send ringless voicemail messages, presumably because they did not know consent was required under the TCPA. Id. at *12. The court was therefore satisfied that there was a generalized, class-wide manner of proving lack of consent. However, when analyzing the more stringent and related requirement of predominance pursuant to Rule 23(b), the court found that the plaintiff failed to show that as to the issue of standing, common issues of fact predominated. The court noted that the plaintiff assumed that every recipient of a single voicemail suffered the same harm he did, but this was a targeted message, and the individuals receiving it likely had some interest in the information conveyed. Id. at *17. Therefore, individual inquiries into what each class member suffered an injury-in-fact due to the defendant’s conduct would be necessary, such that common issued did not predominate. Accordingly, the court held that a class action would not be superior to other available methods for the fair and efficient adjudication of the controversy, and denied the plaintiff’s motion for class certification. 3. Procedural Issues In TCPA Class Actions In 2024, courts continued to grapple with a variety of procedural issues in the context of the TCPA. In Samson, et al. v. United Healthcare Services Inc., 2024 U.S. Dist. LEXIS 35638 (W.D. Wash. Feb. 29, 2024), the court’s denial of the defendant’s motion to dismiss emphasized the viability of asserting claims from absent class members in class actions. The plaintiff, a Washington state resident, filed a class action alleging that the defendant, a Delaware corporation, violated the TCPA by placing unwanted calls to his cellphone after informing them that they had the wrong number and requested no further contact. The court previously had granted class certification to two nationwide classes. The defendant then argued that the court could not exercise personal jurisdiction over the claims of non-Washington absent class members and must dismiss their claims pursuant to Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017). Bristol-Myers addressed a specific question of whether each plaintiff in a mass tort action, pursuing state law claims in state court, must establish specific jurisdiction over a defendant that is not subject to general jurisdiction in that state. As a result, the court denied the motion. In this context, it explained that “[i]n order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum,” meaning “there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Id. at 262. In this case, the defendant argued that the principals established in Bristol-Myers must also apply to class actions filed in federal court, leading to the dismissal of claims from class members outside Washington due to lack of personal

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