November 29, 2022

Volume XII, Number 333


November 28, 2022

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ANOTHER SPLIT: Court Holds Folks DONT Have to Register Their Own Number On the DNC After All, Certifies TCPA Class in Auto Dealership Battle

So one of my favorite cases of the year so far was Rombough v. State Farm. You can read it here.

There it was held that a Plaintiff cannot sue for DNC violations unless they personally registered their number on the national DNC list.

I love that rule because it makes certifying a NDNCR class basically impossible–there is no way to know which folks on the DNC actually registered their numbers and which simply inherited numbers that were already registered. Really good class action killer.

Well in Watson v. Manhattan Luxury Automobiles, 2022 WL 4586407 (S.D.N.Y. Sept. 29, 2022)the court decided class actions must not be killed.

In Watson an auto dealership closed down and basically sold its customer list to another dealership that decided to call and text the previous dealership’s customers. Probably not a good idea. Rather obviously the EBR with the first dealership does not transfer to the second dealership. So second dealership is in a heap of trouble with regard to numbers on the national DNC list.

This is where Rombough could have come in handy. But it didn’t. The Court REJECTED the argument that class members had to register their own numbers on the DNC. Instead it found that everyone on the NDNCR could bring suit.

Matters get worse.

Since the Dealership had no real basis to claim any form of consent or an EBR the court elected to CERTIFY the case. Eesh.

One interesting side note in this one–how the court dealt with experts.

The Defendants challenged the expert reports from “our friends” Snyder and Anya. The Court overruled the objections to Anya’s report but sustained the objections to Snyder’s “Defendant used an ATDS” opinion. On the other hand the Court also struck Sponslor’s opinions that Defendant didn’t use an ATDS and that no database exists to determine whether a text was opened (court found the latter opinion didn’t matter.)

© 2022 Troutman FirmNational Law Review, Volume XII, Number 278

About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...