Wuest v. My Pillow, Inc., 3:18-cv-03658

Background

Plaintiff Richard Wuest sued My Pillow, Inc. under Cal. Pen. Code § 632.7, alleging My Pillow recorded inbound calls without warning between Dec. 27, 2017 and Feb. 19, 2018, and sought statutory damages on behalf of a proposed class of California cell/cordless callers.
My Pillow normally used a recorded message warning callers their calls were recorded, but briefly changed the automated greeting on Dec. 27, 2017 to a message about heavy call volume that omitted the recording notice; the warning was restored Feb. 19, 2018.
Wuest made multiple calls during the window (sales calls Jan. 22, 2018; customer-service calls Feb. 8–9, 2018) and in at least one call was told calls were recorded.
Wuest has a long history of CIPA and related putative class suits (ten prior settled before certification), in many of which he and his counsel received individual settlement payments while putative class members received nothing.
The court evaluated Rule 23(a) adequacy and typicality, finding Wuest’s litigation and settlement history created conflicts, credibility problems, and exposure to defenses unique to him that would prejudice absent class members.
The court denied class certification and granted-in-part and denied-in-part My Pillow’s sealing request: denied sealing of most prior-litigation materials but permitted limited sealing of the retainer exhibit to protect certain proprietary and personal contact information.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of representative under Rule 23(a)(4)	Wuest will fairly and adequately represent class interests and prosecute vigorously.	Wuest’s pattern of individual settlements and litigation history shows conflicts and that he will prioritize personal recoveries over class interests.	Denied — Wuest is inadequate due to conflicts and risk of repeating prior conduct.
Typicality under Rule 23(a)(3)	Wuest’s claims arise from the same course of conduct as the class (unwarned recordings) and are co-extensive with absent members.	Wuest’s unique litigation background and settlements create defenses and motives not shared by class members, making his claims atypical.	Denied — atypical because unique defenses tied to Wuest predominate.
Predominance/individual issues under Rule 23(b)(3)	Common legal questions (statutory violation) predominate and class treatment is appropriate.	Individualized defenses (credibility, settlement history, motive) would predominate and harm absent members.	Denied implicitly as part of Rule 23 failure; individual issues tied to representative would prejudice class.
Motion to seal materials	Plaintiff sought to seal prior-settlement/confidential materials and retainer agreement to protect privileged/confidential info.	Defendant opposed sealing of plaintiff’s prior-litigation materials given public interest; limited sealing for genuinely sensitive portions.	Granted in part and denied in part: prior-litigation materials not sealed; limited sealing allowed for portions of the retainer (proprietary business practices and personal contact info).

Key Cases Cited

Abdullah v. U.S. Sec. Assocs., 731 F.3d 952 (9th Cir. 2013) (standards for class certification under Rule 23)
Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) (adequacy requires no conflicts and vigorous prosecution)
Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 2010) (typicality test for class representatives)
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (permissive standards for typicality and commonality)
Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) (unique defenses can undermine typicality and adequacy)
Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (strong presumption of public access; sealing standard)
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) (seal requests and public access principles)
Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092 (9th Cir. 2016) (compelling reasons standard for sealing records more than tangentially related to merits)