On January 12, 2016, the Ninth Circuit affirmed the denial of class cert. in a Telephone Consumer Protection Act (TCPA), 47 USC 227 action on  predominance and superiority grounds in the case Paul Gannon v. Network Telephone Services, Inc., et al., No. 13-56813, 2016 WL 145811 (9th Cir. Jan. 12, 2016).

In Gannon, the plaintiff alleged that he called the defendants’ phone sex service by accident, and quickly hung up.  Nonetheless, plaintiff alleged that several weeks later he began receiving unsolicited text messages in violation of the TCPA.

Defendants alleged incoming calls received a disclosure that the call serves as consent to receiving text messages, and opt-out instructions are provided.  Additionally, the initial text message sent subsequent to an incoming call also allegedly contained opt-out features.

The Ninth Circuit held that the “central issue” involved was whether each putative class member received unauthorized text messages. As the district court found, however, reaching this determination would require individualized determinations as to whether each class member: 1) called the defendants on purpose,  2) received print disclosures relating to the texting service,  3) received telephonic disclosures relating to the texting service, and/or  4) whether opt-out procedures were employed.

According to the Ninth Circuit, these inquiries meant that not only did different issues of law or fact permeate the proposed class such that there was not  predominance, but also that individualized inquiries would be necessary to properly assemble the class, rendering it largely unascertainable. Therefore, the Ninth Circuit affirmed the trial court’s denial of class cert. under an abuse of discretion standard.

The case has many facts that can be found in other putative TCPA class actions, such as dissimilar allegations amongst class members of whether their initial contact with the defendant was intentional or the product of some accident, and also whether or not putative class members received consent disclosures and/or utilized opt-out procedures communicated by the defendant(s).  In the absence of creative and accurate means to isolate only those class members meeting a certain level of factual commonality, Gannon and opinions like it stand for the proposition that individual suits, and not classes composed of putative plaintiffs with factually dissimilar cases, is the best means to resolve putative TCPA claims.

A copy of the Ninth Circuit’s opinion can be found here.

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