Represented by a team of Ballard Spahr attorneys, a seller of consumer products recently defeated the plaintiffs’ motion to certify a class in their lawsuit filed in Utah federal district court alleging violations of the Telephone Consumer Protection Act (TCPA) by the seller and another defendant.  My fellow Ballard team members were Jenny Perkins, Will Reilly, and Ashley Waddoups.

In Cunningham, et al.  v. Vivint, Inc. and DSI Distributing, Inc., the named plaintiffs alleged that they received unlawful automated telemarketing calls and texts promoting the seller’s products.  In addition to the seller, the plaintiffs named as a defendant a vendor that directly or through subvendors handled inbound calls made to the seller.

The plaintiffs sought certification of three nationwide classes involving:

  • Persons who received two or more telemarketing calls on behalf of the seller when their numbers were on the National Do Not Call Registry;
  • Persons who received telemarketing calls on behalf of the seller using an automatic telephone dialing system; and
  • Persons who received telemarketing calls on behalf of the seller when the seller did not maintain any internal procedures to prevent improper calls.

With respect to the vendor, the court found no basis to certify a class because the plaintiffs admitted that the vendor did not directly call or text them.  The plaintiffs argued that the calls they received were likely made by a subvendor but were unable to produce any supporting evidence. They also could not show any evidence connecting the vendor to the texts they received.

With respect to the seller, the court found that the plaintiffs had failed to meet the requirements for class certification in Rule 23(a) of the Federal Rules of Civil Procedure.  Although it found that the plaintiffs had met the numerosity and commonality requirements, the court found that the plaintiffs had failed to satisfy the requirements of typicality and adequacy.

According to the court, typicality was not satisfied for reasons that included:

  • The plaintiffs had not established that the phone number at which one of the named plaintiffs received the allegedly unlawful calls  was a residential number.
  • There was an unresolved issue as to whether the other named plaintiff’s claims were subject to a previous settlement agreement and waiver with the defendants.
  • The plaintiffs were essentially professional litigants based on having filed hundreds of TCPA cases.

The court found that adequacy was not satisfied for reasons that included their failure to vigorously prosecute the case based on their having moved for class certification approximately two and a half years after filing their original complaint in violation of both the District of Utah’s local rules and Federal Rule 23(c)(1).  In addition, the court questioned whether the quality of the plaintiffs’ advocacy demonstrated “vigorous” prosecution of the case and found there were potential conflicts between the class sought by the plaintiffs and the potential class in another pending case against the seller for alleged TCPA violations.