Uncertainty about whether a plaintiff’s phone number was used for business or residential purposes put an end to his attempt to lead a Telephone Consumer Protection Act (TCPA) class action, according to a federal magistrate judge in Oregon.
The case is Mattson v. New Penn Financial, LLC. The plaintiff, Erik Mattson, who is a frequent TCPA litigant, accused New Penn Financial of calling his cellphone while it was registered on the National Do Not Call Registry. New Penn filed for summary judgment and the court denied the motion, finding that a genuine issue of material fact existed regarding whether Mattson’s number was a residential or business phone number.
After losing the motion, New Penn rallied and filed a motion to deny class certification, arguing that the uncertainty about the use of Mattson’s phone number made him an atypical and inadequate class representative.
U.S. Magistrate Judge Youlee Yim You agreed.
Courts have long recognized that the uncertain standing of a class representative creates unique legal issues for that plaintiff, destroying his or her typicality and adequacy as a class representative, Judge You said, and a danger exists that absent class members will suffer if the representative is preoccupied with defenses unique to him or her.
Therefore, where it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff, he or she is not a proper class representative, Judge You explained.
“In this case … there is an issue unique to plaintiff—whether the subject number is a residential or business phone number,” she wrote. “Here, the issue is not only fact-intensive but also hotly contested, as the briefing on summary judgment illustrates. No doubt, plaintiff’s ‘effort’ at trial will be ‘necessarily … devoted to [his] own problems’ and ‘may well … result in less attention to the issue which would be controlling for the rest of the class.’”
While Mattson argued that the issue was not unique to him and instead pertained to New Penn’s affirmative defense of consent, the court noted that whether the subject phone is a residential phone number is a burden for the plaintiff to prove at trial.
New Penn was not required to demonstrate that Mattson would fail to establish standing at trial, but only to show that his issue was unique, arguable and likely to usurp a significant portion of his time and energy, You said.
The fact that Mattson bears the burden to establish whether his number was residential further illustrated how allowing him to proceed as a class representative would result in less attention to the issues that would be controlling for the rest of the class.
As Mattson could not satisfy the requirements of Federal Rule of Civil Procedure 23(a) to be a class representative, You recommended that New Penn’s motion to deny class certification be granted.
To read the findings and recommendations in Mattson v. New Penn Financial, LLC, click here.
Why it matters: Although the defendant lost at the summary judgment stage, it was able to use the same argument to win its motion to deny class certification. If the plaintiff had to establish his standing to file suit by carrying the burden to show that the number at issue was a residential line and not a business number, then he would be too distracted by his own issue to focus on the needs of the class and to be a typical or adequate class representative, the defendant was able to persuade the court. This case also shows how putative class action cases can often be defeated at the certification stage, even after losing dispositive motions. While issues of fact may preclude a summary judgment ruling in a defendant’s favor, those same factual issues may make certification inappropriate. And, without a class, TCPA cases often resolve when only the named plaintiff’s individual claims remain.