The district court for the Northern District of California recently granted a motion to deny class certification in an action brought under the Telephone Consumer Protection Act (TCPA) based on the plaintiff’s inability to vigorously represent the class.
In Trim v. Mayvenn, Inc., the named plaintiff alleged that, although she registered her cell phone number on the National Do Not Call Registry (NDNC Registry), Mayvenn sent two text messages to that number without her consent. In response, the plaintiff brought a putative TCPA class action on behalf of all persons in the United States whose telephone numbers were on the NDNC Registry yet received one or more telemarketing call from Mayvenn within a 12-month period.
Mayvenn moved to deny class certification arguing the plaintiff was an improper class representative. The court agreed on two grounds — typicality and adequacy.
As to typicality, the court explained that the plaintiff’s use of her cell phone for business purposes raised a unique defense, rendering her claims atypical of the class under Rule 23(a)(3). Specifically, the NDNC Registry only applies to residential calls, not calls made to businesses. The plaintiff, therefore, must prove she is a residential NDNC registry subscriber to maintain her TCPA claim. The court found the issues of fact surrounding whether the plaintiff qualified as a residential subscriber — by virtue of the mixed use of her cell phone for personal and business purposes — could become the focus of the litigation, making the plaintiff an inappropriate class representative.
As to adequacy, the class representative must prosecute the action vigorously on behalf of the class. However, Mayvenn successfully showed the named plaintiff had serious credibility problems going to the heart of the litigation. This included her contradictory deposition testimony, summary judgment affidavit, and interrogatory responses about using her cell phone for personal versus business purposes. The court agreed the plaintiff would have to devote much of her time and resources to refuting Mayvenn’s character attacks if she remained class representative and found this could come at the expense of vigorously prosecuting the case for the class.
This case is a good reminder that class discovery should include investigation into unique defenses applicable to the class representative’s individual claims and credibility. As courts have a duty to ensure the class representative will not divert attention or resources away from the class, thorough discovery could defeat class certification.