Antitrust Law Daily Wrap Up, PRIVACY—S.D. Fla.: Class of fax recipients certified in TCPA case against MetLife, (Feb 6, 2014)

By Jody Coultas, J.D.

The federal district court in West Palm Beach, Florida, has certified a proposed class in a Telephone Consumer Protection Act (TPCA) action against Metropolitan Life Insurance Company for allegedly sending faxes that lacked the opt-out language required by the statute (C-Mart, Inc. v. Metropolitan Life Insurance Co., February 4, 2014, Middlebrooks, D.).

Plaintiff C-Mart, Inc. alleged that MetLife hired Storick Group Co. to sell life insurance. Storick then sent unsolicited fax advertisements to over 35,000 Missouri residents, including C-Mart. The faxes allegedly violated the TCPA because they did not contain the required opt-out provision.

The class definition was adequately defined, according to the court. C-Mart sought to certify a class of all persons in Missouri who were sent a facsimile during the period of August 7, 2012, through September 6, 2012 from Storick. MetLife argued that the inclusion of individuals who may have provided their phone numbers voluntarily ignores their ability to employ their defense under the TCPA. However, individual inquiries to determine the source of each phone number were not necessary because the issue was not whether the recipients consented to the faxes. C-Mart’s allegations were based on the absence of the required opt-out language, and there was no evidence that any of the faxes sent by Storick contained such language. MetLife’s argument that only individuals who owned the faxes could be included in the class was also dismissed as contrary to the TCPA’s language regarding faxes.

Each requirement for certification set forth in Federal Rule of Civil Procedure 23(a) was met, according to the court. Under Rule 23(a), a class must: (1) be so numerous that joinder of all members is impracticable; (2) be based on common questions of law or fact; (3) be representative by a party with claims typical of the class; and (4) be fairly and adequately protected by the representatives. C-Mart estimated that over 35,000 faxes were sent, which more than met the numerosity requirement. C-Mart was also able to show that the main common answer the class definition generated was that MetLife sent class members unsolicited advertisements without the required opt-out language. The typicality requirement was also met because C-Mart received one of the faxes that lacked the proper opt-out notice. Class counsel had sufficient qualifications and experience to handle the class action, and there was no conflict of interest between C-Mart, its chosen counsel, and the class members.

C-Mart also met the certification requirements of Rule 23(b)(3), according to the court. The party seeking certification of a class must demonstrate that common questions predominate over individual interests and that a class action is the superior means of adjudicating such a controversy. The issue of consent did not predominate over the central, common issue of whether the faxes contained the opt-out language. Therefore, predominance was satisfied. Although the TCPA allows individual plaintiffs to bring claims, Congress has never indicated an intent to eliminate class actions under the TCPA. Here, the large number of claims and the relatively small statutory damages indicate that a class action would be the superior method of adjudicating the TCPA claims. Also, the court noted a desirability to adjudicate the claims consistently, and that individual members would not have a great interest in controlling the prosecution of these claims.

The case is No. 13-80561-CIV.

Attorneys: Brian J. Wanca (Anderson & Wanca) for C-Mart, Inc. Becca J. Wahlquist (Manatt, Phelps & Phillips, LLP) for Metropolitan Life Ins. Co. and Storick Group Co.

Companies: C-Mart, Inc.; Metropolitan Life Insurance Company; Storick Group Co.

Cases: Privacy ConsumerProtection FloridaNews