In March 2019, plaintiffs Axel Derval and Morgan Simmons initiated a Telephone Consumer Protection Act class action lawsuit against Xaler – a cannabis delivery company. Plaintiffs alleged that Xaler employs a “uniform policy of causing text messages to be sent to consumers’ cellular telephones on Xaler’s behalf without prior express consent.” Xaler asserts that it only sends text messages to its customers who have consented to receive text messages.

In a brief opinion, Judge Otis White of the United States District Court for the Central District of California nixed plaintiffs’ class claim on numerosity grounds. The Court acknowledged that numerosity does not turn on a fixed number of class members, and that numerosity may be met when the exact number of class members is unknown. However, the party moving for class certification must show “some evidence of or reasonably estimate the number of class members.” Speculation about the class size is not enough to satisfy numerosity.

In support of their motion for class certification and allegation that numerosity was satisfied, plaintiffs relied on “hundreds of [online] reviews from different [Xaler] customers” on a particular website. Plaintiffs argued that “hundreds of reviews mean hundreds of Xaler customers, all of whom must have received text messages from Xaler,” and “common sense dictates at least some of those customers” received text messages without providing consent.

Based on these allegations, the Court held that plaintiffs failed to satisfy the numerosity requirement of Rule 23. The Court found that the reviews on did not support a finding that the “customers received unwanted text messages, revoked consent to receive messages, or continued to receive messages after revocation.” Thus, while plaintiffs showed that there may be enough Xaler customers to show numerosity, “[e]vidence of possible class membership is not evidence of actual numerosity.”

Without addressing any other Rule 23 requirements, the Court denied class certification.

It is not often that we see class certification defeated on numerosity grounds, but this decision from the Central District of California is a reminder to consider every angle to defeat class certification.

Our Cannabis Practice provides advice on issues related to applicable state law. Cannabis remains an illegal controlled substance under federal law.