A Plaintiff seemingly invites phone calls and then turns around and sues in a putative TCPA class action.

That was allegedly the case in Wiley v. American Financial,  2023 WL 4681538 (C.D. Cal. July 3, 2023) and the case ended with a stunning rejection of the Plaintiff’s ability to represent the class.

In Wiley the Plaintiff allegedly called in to Defendant and left a voicemail. Defendant then called back several times to reach the Plaintiff, and Plaintiff turned around and sued for the resulting calls.

Defendant argued that the voicemail was a request for information and that is the reason it made return calls. Plaintiff denied it–although the VM transcript was apparently not available.

Regardless the court found the case was not certifiable. The dispute over the content of the VM–and the possibility that Plaintiff had indeed invited the calls–was sufficient to create a unique defense that made Plaintiff inadequate to represent the class.

Typicality and adequacy are not met, and class certification is not appropriate, when there are issues and defenses
unique to the named plaintiff’s circumstances that could “preoccup[y]” the named plaintiff and “skew the focus of the litigation”…Her weaker claim could give her incentive to settle for a lower amount than might be obtained when
considering the stronger claims of other class members.

Booyah.

So because Defendant had evidence the plaintiff invited the calls she could not represent the class, even though she denied inviting the calls. Excellent!

This case underscores the difference between winning a case substantively on the papers–which is hard where a Plaintiff denies visiting a website or inviting calls–and defeating certification–which should be quite straightforward where evidence of consent exists.

For the curious, this was the Hon. Cormac Carney–great judge–here in my backyard in Orange County, CA that decided this one.