Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—E.D. Cal.: Cell phone user denied class certification in TCPA claim, (Mar 4, 2014)

By Jody Coultas, J.D.

A cell phone user’s motion to certify a Telephone Consumer Protection Act (TCPA) class action against Cellco Partnership, doing business as Verizon Wireless, was denied by the federal district court in Sacramento (Labou v. Cellco Partnership, February 28, 2014, England, M.).

The cell phone user alleged that Verizon called her cellular phone number with an automated telephone dialing system to collect unpaid wireless bills owed by a former brother-in-law. Verizon countered that it only attempts to collect debts through calls to the number provided by the customer or the Verizon-issued cellular number, and that it stopped calling the user as soon as it learned the brother-in-law could not be reached at her number.

The proposed class included all persons who received any telephone calls from Verizon made using an automatic telephone dialing system in the past four years, when that person had not previously provided their cellular telephone number to Verizon.

Verizon filed a motion asserting that the user could not establish the propriety of her class representation because her claims were not typical of the class claims and she was not an adequate representative.

Typicality. The user’s claims were not typical of the class, and she failed to qualify as a proper class representative, according to the court. Verizon argued that the brother-in-law’s involvement introduced issues that other proposed class members would not be concerned with, the issue of “prior written consent” differed significantly between non-customers and customers, calls made to a Verizon-issued phone were not chargeable against a Verizon customer’s monthly service plan, and Verizon customers who agreed to have their claims arbitrated could not be included as class members. Even if the user’s claims arose from the same course of conduct as other class members, the issues and facts surrounding the user’s claims were unique because she was not a Verizon customer.

Adequacy of representation. The user claimed that discovery should be permitted to allow her to determine the adequacy of her representation and to shed light on TCPA issues such as “how often Verizon calls non-customers with an automated dialer” and whether “Verizon has blocked Plaintiff’s cell phone number from its automated dialer.” However, these requests illustrated the user’s inadequacy as a representative, as discovery relating to non-customers did not support a proposed class of mostly Verizon customers. The user did not possess the same interests or suffer the same injury as the majority of the proposed class.

The case is No. 2:13-cv-00844-MCE-EFB.

Attorneys: Joshua Branden Swigart (Hyde and Swigart) for Rebecka Labou. Alexander Howard Cote (Scheper Kim & Harris LLP) for Cellco Partnership and Los Angeles SMSA Ltd. Partnership

Companies: Cellco Partnership; Verizon Wireless

Cases: ConsumerProtection Privacy CaliforniaNews