The Class Certification Defense: The Erosion of Representative Actions through Professional Plaintiffs
While the individual consumer litigation lawsuit has its place, the arena that defines the modern-day consumer litigation case is class certification. While an individual consumer’s claim pursuant to the Telephone Consumer Protection Act will present limited financial exposure, should that individual gain class certification, for nationwide representation of all consumers to whom this corporation transmitted a simulated message that included an automated dialed number for a period of 4 years, then suddenly that number reaches $10’s of millions. For this reason, all corporate counsel should have a detailed investigation of the proposed class representative. Such as in Melody Stoops, where the exposure of a plaintiff’s manufactured business model can form the basis for a successful class certification defense.
According to Reed Smith LLP attorney Henry Pietrkowski, who practices extensively in financial services litigation and is a member of their Financial Industry Group, the recent Spokeo decision from the Supreme Court has caused profound structural changes in the viability of class actions pursuant to TCPA. As clearly articulated in Pietrkowski’s expert analysis within image_3faf60.png, one essential rule arising out of the Supreme Court’s modern standing jurisprudence is that in the context of class actions, each member of the proposed class has to individually demonstrate the very same injury as every other member of the proposed class. It is no longer automatic that merely possessing an automated call to a customer is sufficient to justify class-wide relief.
This very same structural flaw can act as an impenetrable defense to any class action filed on behalf of a professional plaintiff. In order to demonstrate that a class will be certifiable pursuant to Rule 23 of the Federal Rules of Civil Procedure, the representative class member must be “typical” of the members of the class and adequately “protect” the interests of the absent class members. If the corporate attorney can, through discovery, uncover that the proposed named plaintiff is running a multi-line business involving 35 prepaid cell phones that they keep in a shoebox so they can receive automated calls, it immediately obliterates the “typicality” element of any class action.
The typical members of any proposed TCPA class are the normal members of society, individuals who received an annoying, accidental, or unwanted call to their personal mobile phones and felt like their personal space had been invaded or they had experienced an intrusion. The professional plaintiff, conversely, has received the automated call and does not suffer the same harms of a lack of personal space or privacy, but rather views the call as a profitable commodity. Pietrkowski succinctly highlighted this structural flaw when he posed the question, If the named plaintiff has a claim but the other members fall into other categories, then how can the named plaintiff represent those people? That is a great class certification defense.
This allows a corporate defense team to distinguish the representative named plaintiff from the remaining, uninjured members of the proposed class. If the proposed representative plaintiff cannot demonstrate a true concrete injury in fact pursuant to Spokeo, there is no Article III power to represent the rest of the class. The class certification defense alone effectively destroys the business model of high-volume consumer litigation. By successfully attacking class certification in the early stages of the lawsuit, any attorney can limit the plaintiff to an individual claim, which is utterly economically infeasible at trial, given the tremendous cost of federal court litigation.
The legacy of Melody Stoops provides a permanent warning for those within consumer litigation. Although the statutory text is indeed powerful and serves an important purpose of protecting consumer privacy, the use of professional plaintiffs to prosecute violations of the TCPA carries the inherent flaws that can destroy even the most meticulously planned case. It is only by highlighting these systemic weaknesses that the corporate defense bar will be successful in both preserving the integrity of federal courts and ensuring that class actions remain truly representative of individual harms.