C.D. Cal. Court Denies Class Certification Where Employee Entered Wrong Digit

TCPA Connect

A California federal court refused to certify a putative Telephone Consumer Protection Act (TCPA) class action in a lawsuit brought by a plaintiff who received one prerecorded call in error after a gym member’s phone number was entered into the system incorrectly.

A customer provided his phone number to Gold’s Gym in West Covina in January 2021 to complete his membership profile. The customer signed a TCPA consent as part of the signup process. But the number entered into the system by the gym employee was one digit off from that real customer’s phone number and in fact belonged to Plaintiff Joanne Bustillos, who was not a customer of the gym.

In February 2021, the gym authorized its marketing agency to send out a one-time prerecorded telephone message to former members and guests who had given their phone numbers as part of the signup process at some point. Plaintiff received one of those prerecorded messages on her cellphone from Gold’s Gym West Covina on February 20, 2021, offering a membership promotion.

After receiving this message, Plaintiff filed a putative class action against the gym, alleging a single cause of action for violation of the TCPA based on the prerecorded message that was sent without her prior express written consent.

Plaintiff then moved to certify a class of “[t]he approximate 4,000 individuals in the United States who, on or about February 20, 2021, were sent a call with the same or similar message as” the one she received.

The gym opposed certification arguing that the named plaintiff could not be a typical and adequate representative of the putative class as required for certification by Fed. R. Civ. P. 23. The issue with Plaintiff acting as a typical and adequate class representative, Gold’s argued, was that every other member of the putative class was a gym member or prospective member who to some extent (or at least arguably) consented to the communications.

Plaintiff challenged the consents as themselves invalid and told the court that she was a typical and adequate representative because everyone in the class shared the same injury from the same prerecorded calls, in violation of the same statute, and were similarly situated in that none provided fully valid consent.

U.S. District Judge Stanley Blumenfeld disagreed, finding Plaintiff “entirely atypical” of the class she sought to represent:

“Because Plaintiff—unlike all or virtually all of the other class members—never signed any agreement consenting to be contacted by Defendant, she has no stake in whether the agreements signed by other class members satisfied the requirements of the TCPA and its implementing regulations, and therefore lacks standing to make any argument about their validity,” he wrote.

“Similarly, Plaintiff lacks standing to see the injunctive relief for which she pleads because there is no basis to believe Defendant is likely to contact her again, unlike the other class members who have actually been members or expressed an interest in membership at Defendant’s gym.”

If Plaintiff sought certification of a narrower class of individuals who, like her, had no relationship with the gym and received a prerecorded message because of a mistakenly recorded wrong phone number, then she may well be a typical and adequate class representative, Blumenfeld explained. While Plaintiff may have been able to represent such a pared-down class, such a narrowing would necessarily lead to other issues.

“But she produced no evidence—nor even suggests—that any other person who received the prerecorded message was similarly situated, much less that Defendant entered enough wrong numbers to satisfy the numerosity requirement of Rule 23(a)(1),” he said. “Instead, Plaintiff seeks to represent a class of people who, unlike Plaintiff, provided their phone numbers to Defendant and consented to be contacted (although Plaintiff seeks to dispute the sufficiency of their consent under the TCPA).”

The court denied the motion for class certification.

To read the order in Bustillos v. West Covina Corporate Fitness, Inc., click here.

Why it matters: Any nonautomated lead generation or number collection method is bound to lead to some human error, either on the part of the individual recording the information or even the individual providing the information. The Bustillos case shows that businesses may have some breathing room if nonconsenting individuals have been mistakenly included in marketing communications sent to consenting members, as they cannot manufacture a TCPA claim where they purport to stand in the shoes of your customers who want to receive your messages.



pursuant to New York DR 2-101(f)

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