The United States District Court for the District of Idaho in Dorfman v. Albertson’s, LLC recently granted a Telephone Consumer Protection Act defendant’s motion to deny class certification – not once, but twice – based on the emergency purposes exception to TCPA liability. This exception does not require prior consent to receive autodialed calls or prerecorded messages to cell phones made for emergency purposes, which are defined as calls “made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. 64.1200(F)(4). The Court’s rulings in Dorfman provide an excellent example of a TCPA defendant going on offense and proactively obtaining dismissal of class claims prior to discovery.
Plaintiff Robert Dorfman initially filed TCPA class claims on behalf of himself and a class of individuals who received robocalls from, or on behalf of, Albertson’s, LLC to pick up orders that were never actually placed at Sav-On Pharmacy. The Court granted Albertson’s first motion to deny class certification because Dorfman was not a member of the class he sought to represent, and no common question of fact predominated over individual issues. Nonetheless, because the Court believed that Dorfman could define his class in a way that complied with Rule 23, the Court granted Dorfman leave to amend his complaint.
In his amended class action complaint, Dorfman specifically alleged that he was not a customer of Sav-On, he never consented to Sav-On calling his cell phone number from an autodialer, he received around 21 automated phone calls on his cell phone regarding a prescription belonging to a third party, and he asked for the calls to stop. Dorfman alleged that he received seven calls after he requested that the calls stop. Albertson’s wasted no time, and again moved to deny class certification before class discovery began.
In Albertson’s second motion to deny class certification, the defendant asserted that the class and sub-class definitions failed to satisfy Rule 23(b)(3)’s predominance requirement, which requires courts to determine whether common questions prevail over individualized ones. Albertson’s argued that class certification should be denied based on the emergency purposes exception to TCPA liability, which is a fact-specific, individualized inquiry that predominates over class issues.
The Court agreed, ruling that the trial court would have to inquire into the circumstances and content of each wrong number call that class members received to determine whether the message fell within the TCPA exception, because some intended recipients of prescription robocalls may be ordering medicine whose absence would significantly impact their ongoing health. The Court concluded that the case is a fact-driven, individualized matter.
Furthermore, the Court ruled that denial of class certification prior to discovery was appropriate under Rule 23 because Dorfman could not show that discovery likely would substantiate class action allegations. The Court found that Dorfman did not meet his burden because he failed to provide any “methodology, expert testimony, or plans on how he would use discovery” to confirm that the case could proceed on a class-wide basis. As such, the Court denied class certification, and Dorfman also was precluded from proceeding with discovery.
The Dorfman case demonstrates how a proactive strategy by a defendant can swiftly and efficiently take the wind out of a plaintiff’s sails. Troutman Sanders regularly advises clients on TCPA compliance and defends individual and class action TCPA lawsuits throughout the country. We welcome the opportunity to discuss TCPA compliance and litigation strategies.