Antitrust Law Daily Wrap Up, PRIVACY – N.D. Cal.: Class certification granted in TCPA case against nightclub owner, manager, (Dec 11, 2015)

By Michael Menzhuber, J.D., LL.M.

A motion for class certification, in an action alleging that unsolicited text messages were sent to individuals on a nightclub’s guest list in violation of the Telephone Consumer Protection Act (TCPA), was granted by the federal district court in San Francisco (Mendez v. C-Two Group, Inc., December 10, 2015, Gilliam, H.).

Jamie Mendez signed up to be on the guest list for the Infusion Lounge nightclub by visiting the Club’s website and completing a standard form. Although she was not required to do so, Mendez entered her cell phone number on the form. She subsequently received a total of nineteen text messages from the club that were sent as a part of the Club’s social media marketing program. Although she did not consent to receive the messages, Mendez took no action to stop the texts.

Mendez filed a class action complaint against C & L Associates Inc., the owner of the Club, and C-Two Group, Inc., who managed the club and who hired the vendor for the Club’s social media marketing program. The complaint alleged that the text messages she received were nonconsensual and in violation of the TCPA. She then filed a motion for class certification.

Commonality. Mendez contended that, for purposes of commonality, there were several sufficient common questions: (1) whether the software used to send the text messages constituted an automatic telephone dialing system (ATDS); (2) whether the defendants could be held vicariously liable for the text messages that the vendor sent to the proposed class; and (3) whether the proposed class provided “prior express consent” to receive text messages referencing the Club. The court found that each of these questions was sufficient to show commonality because the class-wide resolution of each question would generate common answers that would drive disposition of the case.

Adequacy of representation. The defendants argued that Mendez would not adequately represent the class because: (1) she and her counsel had a conflict of interest with the proposed class arising from her former employment as a paralegal for her counsel and her current friendship with a former attorney for her counsel’s firm; (2) she lacked credibility on issues material to litigation; and (3) she did not understand her fiduciary duties.

The court determined that: (1) there was no conflict of interest because neither she nor her friend currently worked for her counsel; (2) there was no evidentiary basis for the purported credibility issues claimed by the defendants; and (3) Mendez’s answer in a deposition regarding her understanding of what it meant to be a class representative did not suggest that she did not have the required “minimal familiarity” with the litigation.

Superiority. The defendants contended that Congress did not intend for TCPA claims to be brought in class actions but, rather, were to be brought through individual suits brought in small-claims courts. The court disagreed. It found that: (1) a class action was superior to thousands of individual small-claims cases; and (2) the fact that Mendez could have brought the action in small-claims court had no bearing on the propriety of class action treatment unless it was a superior method of adjudication.

The case is No. 13-cv-05914-HSG.

Attorneys: Richard David Lambert (Stonebarger Law, APC) for Jamie Madrigal Mendez. Alex F. Pevzner (WFBM, LLP) for C-Two Group, Inc. Gregory Sterling Nerland (Akawie & LaPietra Professional Corp.) for C & L Associates Inc.

Companies: C-Two Group, Inc.; C & L Associates Inc.

Cases: Privacy CaliforniaNews