On January 18, a court in the Eastern District of Wisconsin denied class certification in a Telephone Consumer Protection Act (TCPA) case concluding that the factual issue of whether the proposed class members had suffered an injury-in-fact sufficient to confer Article III standing based on the receipt of a ringless voicemail was an individualized issue that would predominate over common issues.
The plaintiff, an insurance agent from Wisconsin, alleged that Advisors Ignite USA LLC violated the TCPA by using ringless voicemail technology to leave prerecorded messages on his cell phone advertising marketing events hosted by the defendant touting ways to “substantially increase his income.” The plaintiff’s name and phone number were included on a list of insurance agents that the defendant had purchased from an industry data provider, which led to the plaintiff — and thousands of other insurance agents — receiving a ringless voicemail message.
The plaintiff moved to certify a class of “[a]ll persons in the United States who (1) were called one or more times by Advisors Ignite (2) from March 17, 2022 to June 30, 2022 (3) with a ringless voicemail from SlyBroadcast (4) on their cellular telephone number with an area code starting with 7, 8, or 9 that had not been ported in the 15 days prior to either call.”
The court analyzed each of the Rule 23 factors in deciding whether to certify the class and found that the plaintiff established numerosity (which was not disputed) and adequacy of representation (which was disputed). However, “at least as to the issue of standing, common issues of fact do not predominate.” The failure to establish commonality and predominance on the issue of standing also led the court to find that the typicality and superiority requirements had not been met.
Specifically, the court found that while the plaintiff may have sufficiently alleged that he suffered an injury-in-fact to confer Article III standing by pleading that he experienced “annoyance, nuisance, and invasion of privacy” among other alleged injuries, his assumption that every insurance agent who received the ringless voicemail suffered the same harm he claimed was untenable. Indeed, the court opined that:
"[P]resumably some of the recipients of the messages [Advisors Ignite] sent were happy to receive them. They may have even followed up by calling Advisors Ignite. Some may in fact have benefitted from receiving the information Advisors Ignite provided. Even those that did not call may have felt unharmed by learning of what was offered and were not annoyed or harmed. They may well have found the information worth the little effort it takes to delete a message after it is received."
The court concluded that the factual issue of whether the class members had suffered an injury-in-fact sufficient to confer Article III standing was an individualized issue that would predominate over common issues, thus undermining his efforts to establish commonality and predominance.
Having found a lack of commonality and predominance as it related to standing, the court went on to conclude that the plaintiff was similarly unable to satisfy the typicality requirement because “[t]he question of whether each member of the proposed class suffered an injury in fact is so particularized as to make resolving it on a class wide basis difficult, if not impossible.”
Finally, these shortcomings in the plaintiff’s certification arguments ultimately led the court to find that a class action lawsuit was not superior to other available methods for the fair and efficient adjudication of the controversy.
Troutman Peppers' Take:
This decision highlights that the injury-in-fact necessary to confer Article III standing is not a one-size-fits-all proposition and provides another helpful decision to use in opposing class certification in TCPA cases. What annoys one person may intrigue another. For the plaintiff in this case, the court’s denial of class certification sent another message he was unlikely to appreciate: speak for yourself.