Abdeljalil v. General Electric Capital Corp.
2015 U.S. Dist. LEXIS 43288
S.D. Cal.2015Background
- Plaintiff Richard Springer sued GE Capital Retail Bank under the TCPA, alleging repeated automated and/or prerecorded calls to cellular numbers after defendants were told the numbers belonged to third parties and after requests to stop.
- Plaintiff moved to certify a nationwide class of non-customer cellular subscribers called at least twice between Aug. 22, 2008 and Aug. 22, 2012, where defendant’s account notes indicated the number belonged to a third party (using terms like “wrong number,” “third party,” etc.); express-consent persons and emergency calls were excluded.
- Defendant opposed, arguing the proposed class (not pled in the operative complaint) was over-/under-inclusive, not ascertainable, and that individualized issues (consent, identification of non-account-holders, ATDS use, scienter, safe-harbor) defeat predominance.
- The court allowed plaintiff to narrow the class from the TAC and held the class is ascertainable, numerosity is satisfied, and Rule 23(a) factors (commonality, typicality, adequacy) are met at this stage.
- The court denied certification under Rule 23(b)(2) (injunctive relief) but granted certification under Rule 23(b)(3), modifying the class definition to add explicit exclusion for persons who gave express consent.
- The court reserved the right to revisit certification if later discovery shows individualized issues overwhelm common ones or the proposed identification process proves unworkable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class definition / ascertainability | Proposed objective 4-step record search will identify class members by account notes and dialer records | Search terms produce over-/under-inclusive results; context requires manual, individualized review making class unascertainable | Class is sufficiently ascertainable from business records; proposed narrowing acceptable |
| Numerosity | Reasonable to infer more than 40 members given defendant’s large call volume and use of the dialer | No evidence provided quantifying class size | Numerosity satisfied at this stage |
| Commonality / Typicality / Adequacy | Common questions (ATDS use, calls to non-customers without consent after notice in records) and Springer’s facts typical of class; counsel adequate | Individualized factual differences (e.g., whether number was identified as cell; consent) and plaintiff’s deposition attendance/knowledge raise adequacy concerns | Commonality and typicality met; Springer adequate absent later showing of inadequate prosecution |
| Rule 23(b)(2) injunctive relief | Seeks class-wide injunctive relief in addition to damages | Primarily seeks individualized monetary relief; alleged conduct inadvertent; injunctive relief not appropriate | Certification under Rule 23(b)(2) denied |
| Rule 23(b)(3) predominance / superiority | Common proof can resolve key issues (dialer use, records showing third-party status) and class action is superior given small per-plaintiff damages | Individualized issues (consent, revocation, identification, safe-harbor, ATDS use, willfulness) defeat predominance | Predominance and superiority satisfied now; certification under Rule 23(b)(3) granted, subject to future reconsideration if individualized issues dominate |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (Rule 23’s rigorous analysis and commonality requirement explained)
- Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147 (U.S. 1982) (district court must perform rigorous analysis of Rule 23(a) prerequisites)
- Wang v. Chinese Daily News, Inc., 737 F.3d 538 (9th Cir. 2013) (plaintiff must satisfy Rule 23(a) and at least one Rule 23(b) category; merits may overlap with Rule 23 analysis)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (Rule 23(b) analysis may require consideration of the merits; predominance inquiry stressed)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (standards for commonality, typicality, adequacy of representation)
- Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) (plaintiff bears burden to demonstrate Rule 23 requirements)
- Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009) (predominance and superiority focus on judicial economy and cohesion of class)