3:20-cv-01922
D. Conn.Sep 21, 2022Background
- In May 2019 Mosquito Squad used the Slybroadcast / MobileSphere platform to deliver a single ringless, pre-recorded voicemail advertising tick-control services to 9,186 customer voicemail inboxes; Plaintiff Lenorowitz was one recipient.
- Lenorowitz sued under the TCPA, seeking to certify a nationwide class of persons who received the prerecorded marketing voicemail from Mosquito Squad.
- Plaintiff proposed counsel and a class including persons who received prerecorded messages between April 1, 2019 and the present; the Court revised the class to track the TCPA (cellular phones and residential landlines).
- Defendant contended class certification should be denied for lack of Article III standing, an overbroad class definition, lack of ascertainability (individualized inquiries about line type and whether messages were heard), inadequacy of the representative, and that a class action is not superior.
- The Court rejected Defendant’s standing challenge (holding an unsolicited prerecorded voicemail is a cognizable injury under Spokeo/TransUnion in this context), accepted narrowing the class to cell/residential lines, found ascertainability/addressable by notice/questionnaire/subpoena, found the representative and counsel adequate despite personal ties, and held class treatment is superior given small individual statutory damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | A single unsolicited prerecorded marketing voicemail implicates privacy/nuisance harms Congress meant to redress; class members therefore have standing. | Absent concrete harm beyond a statutory violation, absent class members lack Article III standing (relying on TransUnion/Spokeo). | Court denied standing challenge: unsolicited prerecorded voicemail is a cognizable injury in this context; TransUnion/Spokeo do not bar standing here. |
| Class definition / overbreadth | Class should include all recipients of the prerecorded marketing voicemail; can be refined to match TCPA-covered lines. | Plaintiff’s original definition was overbroad (included non-TCPA lines). | Court required and adopted a revised class definition limited to cellular phones and residential landlines. |
| Ascertainability / individualized issues (line type; business vs residential; whether message was heard) | Delivery to an operational voicemail inbox is sufficient; line-type and other ambiguities can be resolved by notice questionnaires, affidavits, subpoenas, or claims process. | Individualized inquiries (e.g., whether number was a business line, whether recipient listened) predominate and make class unmanageable. | Court held class is ascertainable/practicable: individualized questions can be addressed through notice/questionnaire/subpoena and proof of delivery suffices (no need to show message was listened to). |
| Adequacy of representative & superiority | Named plaintiff and counsel will fairly and adequately represent the class; small statutory damages make class treatment superior. | Plaintiff’s close personal relationship with class counsel creates a conflict; also argued class damages could be crushing and class is unnecessary. | Court found no disabling conflict (counsel opted out of class), counsel adequate, and class action superior given small per-member statutory damages and efficiency of class treatment. |
Key Cases Cited
- Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196 (2d Cir. 2008) (describing Rule 23(a) prerequisites for class certification)
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (burden of proof for class certification is by a preponderance and court may consider evidence)
- In re Initial Public Offerings Sec. Litig., 471 F.3d 24 (2d Cir. 2006) (courts may receive affidavits/documents/testimony to resolve factual disputes on certification)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (requiring that statutory violations show a concrete injury for Article III standing)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (clarifying that every class member must have Article III standing; distinguishes concrete injury analysis)
- Ybarra v. Dish Network, LLC, 807 F.3d 635 (5th Cir. 2015) (interpretation of TCPA regarding when a prerecorded voice has been "used")
- Warnick v. Dish Network LLC, 862 F.3d 346 (3d Cir. 2017) (rejecting requirement that a recipient actually hear the prerecorded message for TCPA liability)
- In re Petrobras Sec., 862 F.3d 250 (2d Cir. 2017) (declining to adopt a heightened ascertainability standard and discussing manageability under Rule 23)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (discussing superiority and class action purposes)