In Wiley v. American Financial Network, Inc., a district court judge in the Central District of California denied a motion for class certification in a Telephone Consumer Protection Act (TCPA) case, finding the defendant provided evidence suggesting the plaintiff invited the calls.

The case arose out of the defendant obtaining leads to contact consumers about its lending services from many different sources, including lead generators and direct solicitation. The defendant could not show how it obtained the plaintiff’s phone number, but evidence showed she was contacted three times on September 7, 2021. She returned one of the calls and left a voicemail message. One of the defendant’s employees called her back and the call lasted over a minute. Over the course of ten calls with three different employees, there is no record that the plaintiff ever asked to be placed on the do-not-call list. In fact, one employee specifically recalled that when he called the plaintiff, she said she was interested in their services but could not talk at that time and asked to be called back. On the follow up call, the plaintiff ultimately said she was not interested, but again did not ask to be placed on their do-not-call list.

The court found that the plaintiff was neither a typical nor adequate representative of the class, which she had defined as individuals who were called when they were on the national do-not-call registry and their numbers did not come from either of the lead generator companies. The court said the “typical member of the class [the plaintiff] seeks to represent hoped and expected that his or her privacy would be respected and not invaded by unwanted phone calls from [the defendant].” Because the defendant presented evidence that the plaintiff invited communications, her situation was not typical of the class. The court held the evidence made class certification inappropriate whether or not it was true the plaintiff asked the defendant to contact her: if she did ask then she was not a typical or adequate representative and if she did not ask then substantial time in trial would be spent focused on evidence about her consent, to the detriment of the class. The court went on to find that “[t]his diversion of time would prejudice other class members, who did not leave [the defendant] a voicemail or ask its representatives to call them back.” The court also expressed concerns that evidence about the plaintiff’s issues could confuse the jury, divert resources from vigorously prosecuting the case on behalf of the rest of the class, and give the plaintiff incentive to settle for a lower amount because of the weaknesses in her claim. Ultimately the court found “the major focus of the litigation in this case will be on issues and defenses unique to [the plaintiff], not on the class claims … [The plaintiff] is not a typical representative of the class and cannot adequately protect the class’s interest as Rule 23(a) requires.”

Troutman Pepper will continue to monitor developments in the TCPA space.