Certifying two classes in a Telephone Consumer Protection Act (TCPA) class action, the New York Federal Court found that issues of individualized consent did not prevail and that plaintiffs did not need to demonstrate that they had personally registered their numbers in the National Do Not Call Registry.
In January 2017, the Honda of Manhattan (HOM) car dealership closed. HOM agreed with its sister dealership, Manhattan Luxury Automobiles (MLA), that MLA would offer service to HOM customers.
HOM sent its customers emails and text messages informing them that MLA could service their vehicles along with the option of opting out of future communications.
Some HOM customers who have purchased or leased vehicles from HOM have signed agreements expressly agreeing that HOM may contact them and share certain personal information with certain third parties.
MLA then sent text messages offering vehicle maintenance, service and inspections to HOM customers who did not affirmatively opt out of the communications. Many HOM customers received more than one message.
Five people filed the TCPA suit, saying the MLA violated the statute by sending unsolicited text messages. Plaintiffs moved to designate three classes, including an automated telephone dialing system (ATDS) consisting of all HOM customers who received a text message from MLA to a non-business cellphone using a specific platform with certain content.
The second target class, or the National Do Not Call Registry (NDNCR) class, consisted of all members of the ATDS class who received at least two such text messages during the 12-month period when their phone number was listed in the NDNCR.
Finally, a third class is intended to include all members of the ATDS class who received messages while MLA failed to establish a process to request a list of persons who would receive telemarketing calls, the Internal Do-Not-Call List (IDNC) class.
MLA certification is charged for all three types. He raised two primary defenses to class certification: that individualized inquiries should be required to determine whether each member consented to receive text messages, and whether each member registered their phone number with the NDNCR.
U.S. District Court Judge Lorna G. Schofield disagreed.
Considering the consensus, the court found that the issues could be resolved with classwide evidence.
Although the MLA argued that some members of the class signed two forms when they purportedly agreed to receive the text (a form of contact permission and a notice of confidentiality and recognition), because every member of the class signed the same forms, “by constitutional law, the signatures support the consent. defense and whether that consent can be transferred [MLA] can be identified with common evidence,” the court said.
Alternatively, MLA was showing HOM customers the opportunity to opt out of future communications, claiming that it only sent messages to those customers who did not opt out.
“The legal issues of whether the failure to opt-out constitutes consent can again be litigated on a common basis because every class member received the same opportunity to opt-out,” Judge Schofield explained.
Turning to the NDNCR class, Judge Schofield rejected the MLA’s opinion that only a person who registered their number with the NDNCR can claim under the TCPA and that class members inherited a telephone number that was registered through the NDNCR. the previous user of that number.
Judge Schofield argued, “Whether each member registered his or her number in the NDNCR is irrelevant, so the issue does not predominate over common issues.” He further stated, “The NDNCR regulation provides that once a telephone number is registered, it remains preserved until it is positively removed from the register.”
47 CFR § 64.1200(c) (2) provides that no-call registrations “shall be honored indefinitely, or until the registered consumer or telephone number is removed by the database administrator.”
“What is provided is the result [MLA] moves that, when phone numbers change hands, NDNCR does not always fully consider which users have requested to be included,” the court said. “To resolve potential ambiguities about who is protected from unwanted calls, the rule provides that numbers remain protected until they are removed, whether or not they are still on the list . “
Judge Schofield granted the plaintiffs’ motion for class certification for the ATDS and NDNCR classes, but dismissed the IDNC class for lack of standing. No one on behalf of the complainants ever requested not to receive the MLA’s mail before receiving the message. “Thus, even if Defendant had fully complied with the IDNC provision of the TCPA, Plaintiffs would have received those letters,” the court held.
Read the sentence and order in Watson v. Manhattan Luxury Automobiles, Inc.click here
What does it matter: The New York court decision provides a reminder that some courts will not require actors who have personally registered their number with the NDNCR to receive its protections. In addition, the court was not convinced that each of the consent issues predominated, but could be approved on a classed basis. The Court’s decision to dismiss the IDNC class agrees with several other courts’ holdings that the plaintiff should not be called further to stand to assert an IDNC claim.