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Big Win: Class Certification and Discovery Preempted

As you may know, you can affirmatively move to deny class certification—you don’t need to wait to respond to a Plaintiff’s certification motion.  Not a common tool, but we love to see employed, especially when successful.  In Dorfman v. Albertson’s, LLC, Case No. 1:18-cv-00094-DCN2020 U.S. Dist. LEXIS 3891 (D. Id. Jan. 7, 2020) Albertsons extinguished a proposed class and two sub-classes in this fashion. 

The Plaintiff filed an Amended Class Action Complaint. He alleged that he received a call from Albertsons to pick up a prescription drug, but: he was not a customer; never placed an order; never gave consent to call; received ATDS calls; and had asked for the calls to stop. Both parties agreed the Plaintiff met the requirements to be a class representative. 

Albertsons raised a Rule 23(b)(3) challenge.  Rule 23(b)(3) asks courts to determine whether common questions prevail over individualized ones. Meaning, are the class members going to have proof that varies person to person for each to make their case, or is there common proof sufficient for everyone in the class. If individual questions prevail then a class action is not proper.     

Albertsons argued their call fell under the emergency purposes exception to the TCPA (a statutory exception to TCPA liability, for “calls made necessary in any situation affecting the health and safety of consumers” 47 C.F.R. 64.1200(f)(4)) and, this case is a fact-driven, individualized matter.  The Court harmonized the same tune. “For example”, the Court echoed Albertson’s notion, “some intended recipients of prescription robocalls may be ordering medicine whose absence would significantly impact their ongoing health.”  Thus, the court held, prescription pick up notifications might fall within the emergency purposes exception.  Therefore, as class members would need to present evidence that varies from person to person (e.g. whether the called-about meds were an emergency), they did not permit generalized, class-wide proof. Additionally, for non-emergency calls, class members would need to present individualized evidence that they didn’t provide consent.  Thus, no common question of fact predominated the Plaintiff’s class, and the Plaintiff could not satisfy Rule 23(b)(3).  The Plaintiff did not provide plans as to how discovery could solve these problems, and so he was not allowed to proceed with class discovery either. 

Accordingly, class certification affirmatively denied, and class discovery denied as well!

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 16


About this Author


Jason M. Ingber’s practice focuses on consumer class action defense and breach of contract litigation. Jason specializes in cases brought under the Telephone Consumer Protection Act and has handled all phases of litigation in cases involving consumer protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act and the California Homeowner Bill of Rights.

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