Torres v. Nutrisystem, Inc.
2013 U.S. Dist. LEXIS 66444
C.D. Cal.2013Background
- Torres filed a putative class action against Nutrisystem in California Superior Court for alleged recording of telephone calls without disclosure in violation of Cal. Penal Code §§ 632 and 632.7.
- Case was removed to federal court and Torres filed a First Amended Complaint seeking class certification under Rule 23.
- Class period spans September 18, 2011 to October 3, 2012, during which Nutrisystem allegedly recorded inbound calls using an automated Avaya system with a disclosure delay.
- Disclosure stated that calls may be monitored or recorded; some callers encountered bypass pathways before the disclosure was heard.
- Nutrisystem TASKE records were used to estimate the number of potentially recorded calls without hearing the Disclosure, implying individualized inquiries would be necessary.
- Court denied class certification, finding lack of commonality and predominance due to individualized confidentiality and consent issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Commonality under Rule 23(a)(2) | Torres argues common questions predominate due to identical conduct by Nutrisystem. | Nutrisystem contends confidentiality/consent vary by caller circumstances requiring individualized proofs. | Denied; commonality not satisfied due to individualized confidentiality/consent inquiries. |
| Predominance under Rule 23(b)(3) | Common issues can be proven classwide for damages and relief. | Individualized inquiries about confidentiality and consent dominate. | Denied; predominance not met due to individualized issues. |
| Injunctive relief under Rule 23(b)(2) | Permanent injunctive relief is appropriate for the class. | Relief is not appropriate given mootness and lack of recurrence risk. | Denied; injunctive relief moot and not reasonably likely to recur. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (commonality requires a common claim capable of classwide resolution)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (rigorous analysis required; common questions must predominate)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (predominance concerns cohesion and class treatment)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (predominance and commonality require common issues that can be resolved classwide)
- Faulkner v. ADT Sec. Services, Inc., 706 F.3d 1017 (9th Cir. 2013) (confidentiality in call recordings depends on context and expectations)
- Kight v. CashCall, Inc., 200 Cal.App.4th 1377 (Cal. Ct. App. 2011) (confidentiality/consent issues involve nuanced, case-specific inquiries)
- Right v. CashCall, Inc., 200 Cal.App.4th 1377 (Cal. Ct. App. 2011) (objective reasonable expectation governs confidentiality)
- Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985) (injunctions require ongoing likelihood of recurrence)
- Allee v. Medrano, 416 U.S. 802 (U.S. 1974) (injunctive relief not moot solely because conduct ceased if recurrence possible)