The Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California continues to pay dividends for Telephone Consumer Protection Act (TCPA) defendants, as another Illinois federal court agreed that the opinion prevented it from certifying a nationwide class of plaintiffs.
America’s Health and Resource Center sought to represent a class of recipients of unwanted faxes from Promologics. The defendant moved to strike the class allegations, giving U.S. District Judge Harry D. Leinenweber three reasons: the Bristol-Myers Squibb opinion eliminated non-Illinois residents from the class, the plaintiff’s claims were not typical of the claims of other class members and individualized issues of consent predominated over common questions of law or fact.
The court agreed with Promologics about Bristol-Myers Squibb, but disagreed with the other two reasons, reducing the size of the potential class but not eliminating it entirely.
In Bristol-Myers Squibb, a group of plaintiffs brought product liability actions against the company in California state court, claiming that a prescription drug damaged their health. After the California Supreme Court found it had specific jurisdiction to hear the cases, the Supreme Court reversed last June, holding that the defendant has the burden of proof as to whether a court has personal jurisdiction.
The due process clause, “acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment,” Justice Samuel Alito wrote for the majority. Noting that the plaintiffs were nonresidents and did not claim that they suffered harm in California, and that all conduct giving rise to the nonresident claims occurred elsewhere, the justices held the court lacked jurisdiction over the case.
America’s Health argued that Bristol-Myers Squibb, which involved a mass tort, did not apply with equal force to class actions. While recognizing that district courts across the country have reached contradictory results, Judge Leinenweber noted that courts in Illinois have found the Supreme Court decision applicable to class actions.
The court added one slight hiccup with a question of timeliness, because the defendants waited too long to challenge personal jurisdiction in the suit, potentially waiving the argument. “However, though the Defendants forfeited their personal-jurisdiction challenge by failing to raise it earlier, the Court will excuse the forfeiture,” the judge said.
“In this class action, the Bristol Myers opinion is applicable and its import clear: The Court lacks jurisdiction over the Defendants as to the claims of the nonresident, proposed class members. As such, the Defendants’ Motion is granted in relevant part, and those class members who are not Illinois residents and who allegedly received the fax outside of this state’s borders may not be part of this case. To the extent that the proposed class allegations comprise any such unnamed plaintiffs, they are stricken.”
As this conclusion shrank the class but left the court unable to say whether the remaining balance was sufficient to satisfy Federal Rule of Civil Procedure (FRCP) 23, it considered the defendants’ remaining two arguments.
Addressing the typicality challenge, the court found the class definition did not provide a proper description, granting the defendants’ motion to strike it but allowing the plaintiff leave to amend. Finally, the court rejected the defendants’ position that individualized issues of consent predominated, ruling that the defendants failed to produce “any evidence whatsoever to back up that assertion.”
To read the memorandum opinion and order in America’s Health and Resource Center, Ltd. v. Promologics, Inc., click here.
Why it matters: The Bristol-Myers Squibb opinion is a powerful weapon for TCPA defendants to reduce a potential class of plaintiffs, eliminating nonresidents from the action and decreasing the cost of liability or, depending on the number of plaintiffs remaining, eliminating a class altogether if the court deems it too small to satisfy the FRCP.