In Aley v. Lightfire Partners, LLC, a U.S. District Court in the Northern District of New York certified aa Telephone Consumer Protection Act (TCPA) class action for all persons whose telephone numbers were on the National Do Not Call Registry (DNC) but who received more than one telemarketing call from the defendant based on alleged consent given to a third-party website.
The plaintiff alleged that she received multiple telemarketing calls from the defendant despite placing her number on the DNC. The plaintiff claimed that there were thousands of similarly situated individuals contacted by the defendant as part of the same campaign. The defendant obtained the phone numbers from a separate entity, Connexus Digital, which sold the consumer information to the defendant. Connexus Digital collected the telephone numbers from a website it operated, which recorded consumers who entered telephone numbers and “check[ed] an unchecked box and … click[ed] a continue button” to indicate consent to be called despite being on the DNC. The plaintiff denied ever visiting the website.
The court quickly ran through the Rule 23(a) requirements for class certification. Numerosity was met because there were 62,225 proposed class members. Commonality was found because there were common questions of fact regarding whether the proposed class members’ phone numbers were listed on the DNC, whether they received more than one call from the defendant, and whether the calls were made for the same campaign. They shared common questions of law as well, specifically whether the procedures employed on Connexus Digital’s website were sufficient to establish consent under the TCPA and whether the defendant violated the TCPA. The court found the plaintiff’s claims were typical of the proposed class members because the defendant obtained the phone numbers the same way. The fact that the plaintiff claimed she never visited the website likely applied to other proposed class members and was relevant only for the defendant’s affirmative defense of consent. There was no evidence that the plaintiff’s interests were at odds with the proposed class members, and her attorney was experienced in TCPA litigation, fulfilling the adequacy requirement. The class was ascertainable from the defendant’s records of its telemarketing calls and the plaintiff’s expert’s methods of going through those records.
The court noted that whether the case met the Rule 23(b)(3) requirements was a close call, but certification was proper. There were several overarching common questions of law and fact. Connexus Digital explicitly stated it could not confirm the accuracy of information put into its website and could not verify whether the phone numbers and consent obtained came from the class members or someone else. So while the plaintiff claimed she never went to the website and there might be questions regarding whether the proposed class members visited the website, the sufficiency of the consent procedures used on the website would be the predominate issue for class members. If the consent procedures were determined to be inadequate, whether the proposed class members visited the website was moot. The court concluded by finding a class action was the superior method to adjudicate the case and granted the motion to certify the class.
Our Thoughts:
The court’s decision to certify the class raises significant questions about the propriety of class certification in cases involving third-party lead generation. Troutman Pepper will continue to monitor developments affecting TCPA litigation.