4:15-cv-06314
N.D. Cal.Jan 25, 2018Background
- The court previously certified three TCPA classes (Cell Phone, Residential, and National Do-Not-Call) based on calls made on defendants’ behalf by Alliance and its agents.
- Plaintiffs sought to amend class definitions to account for Additional Calling Data that had been unavailable due to Alliance’s bankruptcy; the court initially denied amendment for lack of showing that the unproduced individuals differed.
- Plaintiffs later obtained the Additional Calling Data after lifting the bankruptcy stay and deposing Alliance/Nationwide, and provided those records to their expert.
- The Additional Calling Data showed that some calls were made by Alliance or Nationwide (identified in Ytel system records) while calls by certain subdealers lacked preserved calling records.
- Plaintiffs subpoenaed 38 subdealers but received no additional call records; this revealed disparate methods for proving who placed calls (identifiable records for Alliance/Nationwide calls, but not for calls by subdealers that failed to retain data).
- Plaintiffs moved to: (1) narrow the Cell Phone Class to calls by Alliance or its agent Nationwide; (2) decertify the Residential Class; and (3) correct the DNC Class time period. The court granted the motion: narrowed the Cell Phone Class, decertified the Residential Class, and corrected the DNC class period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Cell Phone Class should be narrowed to include only calls made by Alliance or its agent Nationwide | The Additional Calling Data shows Alliance/Nationwide records identify class members; narrowing preserves a cohesive class with common proof | Plaintiffs’ earlier certification arguments have not changed; narrowing is unnecessary | Court granted narrowing: Cell Phone Class limited to calls by Alliance or Nationwide because calls by other subdealers lack common proof and defeat predominance |
| Whether the Residential Class should remain certified | Plaintiffs moved to decertify given evidence some residential calls were live (no prerecorded/ artificial voice), undermining classwide proof | Defendants do not oppose decertification | Court decertified the Residential Class for lack of commonality and predominance (no classwide method to determine use of prerecorded voice) |
| Whether the DNC Class period should be corrected | Plaintiffs asked to fix clerical error to reflect four-year statute of limitations starting December 30, 2011 | Defendants did not oppose | Court granted correction: DNC Class period amended to commence December 30, 2011 |
Key Cases Cited
- Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) (district courts have broad discretion to define, revisit, and modify certified classes)
- Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458 (9th Cir. 1987) (district court may redefine class as case develops)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (predominance inquiry requires sufficiently cohesive class claims for classwide adjudication)
- Richardson v. Byrd, 709 F.2d 1016 (5th Cir. 1983) (district court must monitor and adjust class decisions as factual development occurs)
- United Steelworkers v. ConocoPhillips Co., 593 F.3d 802 (9th Cir. 2010) (district court may decertify or alter class certification when appropriate)