In a class action lawsuit against Pisa Group, Inc. for alleged violations of the Telephone Consumer Protection Act (TCPA), the plaintiff moved to certify a class of all persons in the United States who received more than one telephone solicitation call from defendant more than 31 days after registering their phone numbers with the National Do-Not-Call Registry. The court ultimately granted certification finding the common question of whether class members had an existing business relationship with the defendant predominated.
In order to certify a class, the Federal Rules of Civil Procedure require a plaintiff to show: (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact commons to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Even if a plaintiff satisfies the above requirements, he or she must still show one of the following prerequisites applies:
- prosecuting separate actions by or against individual class members would create a risk of inconsistent or varying adjudications;
- the party opposing the class has acted or refused to act on grounds that apply generally to the class; or
- questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
In Williams v. Pisa Group, Inc., the plaintiff sought certification alleging that questions of law or fact common to class members predominated over individualized questions (predominance requirement) and that a class action was superior to other methods of resolving the claims (superiority requirement).
In assessing the predominance requirement, the district court noted that the plaintiff’s claims rested upon whether the defendant or its agents placed two or more calls to individuals within a 12-month period while those numbers were registered on the national do-not-call list for over 30 days. Moreover, the defendant’s regulatory defense rested on whether such class members had existing business relationships with the defendant when they received the calls. The court reasoned that the resolution of both issues would turn on the same data: the national do-not-call list, the defendant’s call records, and a customer management database.
In finding that the common questions predominated, the court reasoned that “TCPA claims like [the instant case] center on large groups of plaintiffs who have received the same scripted calls from the same defendant based on a shared course of conduct.” The court also pointed out that the defendant did not identify any individualized defenses that could predominate over the common issues. In fact, in its answers to interrogatories, the defendant admitted it does not use or consider prior express consent when determining whether it can legally make telephone calls to individuals on the do-not-call lists and that calls are only made pursuant to an existing business relationship. The court concluded “[w]hether a proposed class-member had an [existing business relationship] can, in turn, be determined by analysis of [the defendant’s] own data, and thus will not predominate over common issues.”