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Volume XI, Number 338

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District Court Denies Class Certification For Text Message Recipients Where Issue of Consent Predominate

The United States District Court for the Northern District of California recently denied class certification for plaintiffs alleging a claim under the Telephone Consumer Protection Act (TCPA). Plaintiffs alleged that Wise Media, LLC (Wise), illegally signed up cell phone users for subscription plans to receive texts offering trivial information such as horoscope updates and celebrity gossip. Wise then charged the plaintiffs a $9.99 monthly fee. Because the action against Wise Media was stayed, plaintiffs pursued their claim against “aggregators,” which plaintiffs alleged facilitated Wise’s purported scam by processing billings and monitoring customer complaints. Plaintiffs also accused Mobile Messengers of enrolling them in subscription plans without their consent by means of a software platform owned by Wise.

The court held that for plaintiffs to certify a class asserting a TCPA claim, they must show the lack of consent is common within the class. The TCPA requires that the defendant called or texted a cellular telephone, using an automatic telephone dialing system, without the recipient’s prior consent. The court held that the issue of consent could not be proven on a class-wide basis because individual questions would abound. In addition, the court found that plaintiffs’ speculation that Wise engaged in mass fraud to sign up users was insufficient to demonstrate that consent would be common to the entire class. Accordingly, the court denied class certification.

Fields v. Mobile Messengers Am., Inc., No. C 12-05160 WHA (N.D. Cal. Nov. 18, 2013).

©2021 Katten Muchin Rosenman LLPNational Law Review, Volume III, Number 341
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