New York court upholds two classes in TCPA class action

A federal court in New York upheld two classes in a class action lawsuit under the Telephone Consumer Protection Act (TCPA), finding that individual consent issues did not prevail and that plaintiffs were not required to show that they personally registered their numbers with National Do Not Call Registration.


In January 2017, the Honda of Manhattan (HOM) dealership closed. HOM made an agreement with its sister dealer Manhattan Luxury Automobiles (MLA) that MLA would offer a service to HOM customers.


HOM sent emails and text messages to its customers notifying them that MLA might service their vehicles, along with an option to opt-out of future communications.


Some HOM customers who bought or leased vehicles from HOM had signed contracts allegedly agreeing that HOM could contact them and share certain personal information with certain third parties.


MLA then sent out text messages offering vehicle maintenance, service and inspections to HOM customers who had not specifically opted out of communication. Many HOM customers have received more than one message.


Five people filed suits under the TCPA, alleging that MLA broke the law by sending unsolicited text messages. Plaintiffs proceeded to certify three classes, including the Automatic Telephone Dialing System (ATDS) class, which consists of all HOM customers who received a text message from MLA to a non-business mobile phone through a specified platform with specified content.


The second proposed class, or National Do Not Call Registry (NDNCR) class, consisted of all members of the ATDS class who received at least two such text messages in a 12-month period when their phone numbers were registered in the NDNCR.


Finally, the third proposed class consisted of all members of the ATDS class who received messages, while MLA failed to establish procedures to keep a list of people who asked not to receive telemarketing calls – the internal Do’s class -Not Call List (IDNC). .


MLA declined certification of all three classes. It raised two main objections to the certification of the classes: that individual inquiries would be required to determine whether each class member consented to receive text messages, and whether each class member had registered his or her phone number in the NDNCR.


US District Judge Lorna G. Schofield disagreed.


Given the approval, the court noted that the issues could be resolved with class-wide evidence.


Although MLA argued that certain class members signed two forms when they allegedly consented to receive texts (a contact authorization form and a privacy notice and acknowledgment) because each class member signed the same forms, “the legal issue is whether those signatures support consent.” defense and whether this consent is transferrable [MLA] can be decided with joint evidence,” the court said.


Alternatively, MLA pointed to the possibility for HOM customers to opt out of future communications, claiming that only messages would be sent to those customers who had not opted out.


“The legal issues of whether failure to opt-out constitutes consent again can be heard in court on a common basis because every member of the class has had an equal opportunity to opt-out,” Judge Schofield said.


Regarding the NDNCR class, Judge Schofield dismissed the MLA’s position that only an individual who registered their own number with the NDNCR can make a claim under the TCPA and that the group members may have inherited a phone number registered with the NDNCR is registered by a previous user of this number.


Judge Schofield argued, “Whether each class member has their number registered with the NDNCR is irrelevant, so this issue cannot prevail over general issues.” She further stated, “The NDNCR ordinance provides that once a phone number is registered, until it is expressly removed from the registry.”


47 CFR § 64.1200(c)(2) provides that Do-Not-Call registrations must be maintained “indefinitely or until the registration is canceled by the consumer or the telephone number is removed by the database administrator.”


“This provision anticipates the problem [MLA] notes that when phone numbers change hands, the NDNCR may not always accurately reflect which consumers have requested inclusion,” the court said. “To remove the potential ambiguity about who is protected from unwanted calls, the regulation provides that numbers remain protected until they are removed, regardless of whether they ‘should’ still be on the list.” ”


Judge Schofield granted the plaintiffs’ motion for class certification for the ATDS and NDNCR classes, but denied the IDNC class for lack of standing. None of the named plaintiffs ever asked not to receive messages from MLA before receiving a message. “Even if the defendant had perfectly complied with the TCPA’s IDNC provision, the plaintiffs would still have received those messages,” the court ruled.


Read opinion and order Watson v Manhattan Luxury Automobiles, Inc.Click here.


Why it matters: The New York court’s decision is a reminder that some courts do not require plaintiffs to have personally registered their number with the NDNCR in order to obtain its protection. Furthermore, the court was not convinced that individual consent issues prevail, but that these could be determined on a class-wide basis. The court’s decision to dismiss the IDNC claim is consistent with several other courts that require a plaintiff to request not to be further subpoenaed in order to be eligible to assert an IDNC claim.


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