Class action lawsuits for violations of the Telephone Consumer Protection Act (TCPA) are on the rise. With awards of $500 to $1,500 per statutory violation, and class certification being ascertained by little more than a list of phone numbers sent through an automated dialing system, law firms are finding great success in filing class action suits for TCPA violations, while defendants are struggling to minimize multi-million-dollar damages routinely awarded to plaintiffs in these cases.
The best strategy for fighting off a TCPA class action suit is to challenge the validity of the class certification – to obtain a ruling that no class is in fact ascertainable under Rule 23 of the Rule of Civil Procedure. Computer forensics offers defense attorneys in these class action suits a highly effective arsenal in attacking Rule 23.
Rule 23 sets a 4-part standard for class certification that includes numerosity, commonality, typicality, and manageability. More simply put, a case can be certified a class action if there are so many damaged parties that a joinder of individual parties can’t be accomplished, all the parties have suffered the same damage, all are petitioning for redress under the same law, and all can be managed or represented fairly and adequately as a collective using shared legal representation.
To challenge class certification, defendants have successfully argued that the appearance of someone’s phone number on a list of numbers that were auto-dialed does not automatically identify the holder of that number as part of the class. Just because a cell phone or FAX number was auto-dialed, it does not necessarily follow that the person receiving the call or FAX is an injured party. The person may have in some way consented to be called or FAXed, even if long ago, or may not be the owner of the number or device over which the offending communication was received. Further, the prior relationship of the party receiving an offending call or FAX has a bearing on the question of whether all claimants have a common complaint. Parties to the suit who were once customers or had some other relationship to the plaintiff may not have the same grievance as parties formerly unknown to the plaintiff, and so don’t share commonality under the law. Finally, demonstrating that the number of statutory violations (where each offending call is a violation) is as grievous as claimed by the plaintiffs goes directly to the commonality of damages claimed.
Defense attorneys who want to attack class certification early and effectively, rely upon computer forensics to establish prior relationships of plaintiffs to defendants, to find possible prior consent by plaintiffs, and to establish the actual number of statutory occurrences of the alleged violations, possibly minimizing the number. Class action suits may include thousands of consumers, but offering hard proof that some cases fall outside the Rule 23 requirements for a class action can be enough to prevent class certification and can give the defendant more power in negotiating a settlement.
Sarah Somers, Shriver Center, 2014
Kali Backer, American Bar Association, 2015
Federal Rules of Civil Procedure, Legal Information Institute
Telephone Consumer Protection Act 47 U.S.C. § 227