Class Certification Motion Defeated in TCPA Complaint

Ninth Circuit Court of Appeals Affirms Finding for Defense in Gannon v. Network Telephone Services.

Manatt litigators, led by partner Robert H. Platt at trial and partner Benjamin G Shatz on appeal, secured a major victory for client Network Telephone Services, Inc. (NTS), on Jan. 12, 2016, in the U.S. Court of Appeals for the Ninth Circuit, against a plaintiff seeking to pursue a putative nationwide class action alleging violations of the Telephone Consumer Protection Act (TCPA). The court affirmed the U.S. District Court's ruling that no certifiable class had been identified.

The plaintiff's suit, filed in November 2012, claimed that NTS sent unsolicited text messages by autodialing his and purported class members' cellphones without their prior express consent, alleging he had received promotional text messages after calling an NTS-operated entertainment line. After the U.S. District Court found in 2013 that identification of the class was administratively infeasible, plaintiff appealed to the Ninth Circuit.

"It's gratifying to see the court agree with Network Telephone Services that class certification was not appropriate," said Platt. "Class actions alleging violations of the TCPA are often brought with the primary purpose of recovering legal fees. Our client is very pleased with the decision by the Ninth Circuit in this matter."

NTS, which operates more than 45,000 entertainment telephone lines, advises all callers at the beginning of each call that they will receive text messages unless they opt out, and also discloses in its print advertising that callers will receive text messages. NTS only sends text messages to customers who have previously called one of the company's lines and have not opted out of receiving such messages.

Plaintiff admitted that he had called an NTS line prior to receiving the text messages, but claims he did so by accident and hung up before he heard any sort of disclosure about receiving text messages, and sought to pursue the alleged violation on behalf of a class.

The court denied class certification because, as Manatt argued: (1) the class was not certifiable, because determining who was in plaintiff's proposed class of individuals who received unauthorized text messages would require inquiry into the merits of plaintiff's claims and a determination of who provided consent (i.e., who heard the disclosures, was aware of the advertisements saying they would receive information and elected not to opt out) and who did not; and (2) common issues did not predominate under FRCP 23(b)(3) because the issue of consent would require individual hearings.

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