18th Annual Workplace Class Action Report - 2022 Edition

574 Annual Workplace Class Action Litigation Report: 2022 Edition bargain theory. Id . at *13. Therefore, the Court ruled that Plaintiff properly asserted standing based on an economic loss. Williams, et al. v. PillPack, LLC, 2021 U.S. Dist. LEXIS 212730 (W.D. Wash. Nov. 3, 2021). Plaintiffs filed a class action alleging that Defendant violated the Telephone Consumer Protection Act ("TCPA") by contracting with a third-party, Prospects DM, to promote their products by making calls to cellular telephones using an automatic telephone dialing system. The Court previously had granted class certification pursuant to Rule 23. Defendant subsequently moved to decertify the class, and the Court granted the motion. Following discovery, Plaintiffs moved to amend their class definition, and the Court approved a modified class definition that outlined a class consisting of “all persons or entities within the United States who between March 13, 2018 and June 16, 2019, received a non-emergency telephone call placed by Prospects DM promoting PillPack LLC’s goods or services, as part of the PillPack Performance Media campaign: (i) to a cellular telephone number through the use of an automatic telephone dialing system or artificial or prerecorded voice; or (ii) to a cellular or residential telephone number that had been registered on the national Do Not Call Registry for at least 31 days and who received more than one call as part of the PillPack Performance Media campaign within any twelvemonth period.” Id . at 14. The modified class definition also excluded from the class those whose numbers were obtained from certain websites. Defendant argued that Plaintiffs’ proposed class failed to meet requirements of Rule 23. The Court agreed. It found that Plaintiffs’ class lacked typicality, commonality, and predominance. The Court reasoned that Plaintiffs’ claims were not typical to those of the class because some of the calls made were from a live agent and some were from a recorded message. The Court determined that from the call log list provided by Prospects DM, there was no manner in which to delineate the type of calls that were made to each number. Plaintiffs argued that the proposed newly defined class were tied together by a "common contention" of "whether, under the TCPA, an opt-in to calls from a third-party is prior express written consent to calls promoting PillPack’s services.” Id . at *19. However, the Court ruled that Plaintiffs failed to show that there was a common contention for the class. The Court reasoned that an individualized examination of each of the call log numbers and their opt-in websites would be required to determine whether the consent was consistent with the TCPA. Id . at *20. Thus, the Court concluded that the class claims would be based on individualized inquires, which would predominate over common questions. For these reasons, the Court granted Defendant’s motion to decertify the class. (xxxiii) Default Judgments In Class Actions In Re Fyre Festival Litigation , 2021 U.S. Dist. LEXIS 66760 (S.D.N.Y. April 6, 2021). Plaintiffs brought claims of common law fraud against Defendants relating to misrepresentations made about a music festival being held in the Bahamas. The Court previously had denied Plaintiffs’ motion for class certification and denied the request for an order for a default judgement against the festival organizer Billy McFarland. Plaintiffs filed a motion to reconsider the Court’s rulings. The Court denied the motions. The Court determined that the proposed class was not sufficiently cohesive to establish predominance. The Court noted that the Fyre Festival was marketed across multiple platforms such as Fyre-affiliated social media accounts, celebrity social media accounts, YouTube videos, and websites. Id . at *9. Additionally, class members bought their tickets at different points in time in reliance upon different statements made through different media influencers or different advertisements. Id . The Court thus determined that for each class member, there would be several individual questions regarding what was relied on in purchasing the tickets and if that statement was actually fraudulent. The Court also determined that named Plaintiff Jung was not typical of the members if the putative class. The Court noted that the complaint did not contain any specific allegations indicating which statements were heard, seen, or relied upon by each Plaintiff, how those statements were fraudulent, and if those statements could be attributed to McFarland. Id . at *8. Therefore, the Court ruled that Jung could not show that the way he was allegedly defrauded was typical to the way in which putative class members were also allegedly defrauded. As to the default judgment, Plaintiffs argued that the Court erred in denying the motion because: (i) the motion filed by Jung was brought on behalf of the entire proposed class; and (ii) it was improper for the Court to deny the entry of a default judgment based on identified deficiencies in the second amended complaint. As to the first issue, the Court observed that although no class was yet certified, it took the motion as brought by class Plaintiffs in whole rather than as an individual Plaintiff. Further, the Court found that although Plaintiffs contended that because McFarland willfully defaulted, he was deemed to concede the well-pleaded allegations of liability in the pending complaint, the Court ruled that did not mean that it must accept claims that did not plead facts showing an