A Massachusetts federal judge denied certification of two proposed classes in a case against a medical device manufacturer for alleged TCPA violations, since the plaintiff failed to demonstrate both that the members of the proposed “wrong number” classes were ascertainable, and that common issues predominated in light of the defenses, including consent, that were potentially available based on the facts of the case.
The plaintiff received two prerecorded calls from a medical device manufacturer and sought to certify two classes of similarly situated individuals, (i) the “Prerecorded No Consent Class” and (ii) the “Do Not Call Registry Class,” for alleged TCPA violations. The medical device manufacturer had partnered with a number of pain management clinics to host seminars to educate clinic patients about treatment options for chronic pain management. In connection with the seminars, the medical device manufacturer also partnered with two vendors to invite clinic patients through prerecorded messages. The medical device manufacturer made between one and three calls to each patient. If an individual answered the first call and responded affirmatively or negatively, he or she did not receive any additional calls.
The TCPA generally prohibits calls made using a prerecorded voice to a cellular or residential telephone number without prior express consent of the called party, as well as telephone solicitations to individuals who have registered their telephone number on the national do-not-call registry. Under Federal Rule of Civil Procedure 23, a court may certify a class only if it finds that the proposed class: (i) is so numerous that joinder of all members is impracticable; (ii) there are questions of law or fact common to the class; (iii) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (iv) the representative parties will fairly and adequately protect the interests of the class. In addition, class-wide adjudication must be appropriate for one of the reasons set forth in Rule 23(b).
According to the opinion, “[e]ven if both proposed classes were to satisfy the requirements of Rule 23(a), [the] plaintiff failed to demonstrate that the members of the proposed classes are ascertainable and that the common issues predominate under Rule 23(b)(3).” The class was not ascertainable because the methodology used to determine which numbers dialed were “wrong numbers” and plaintiff’s expert testimony on that issue were not reliable. As for individualized defenses, in particular, consent was a viable and individual defense potentially applicable to each of the putative class’s claims based on the composition of the list of people to be called.