18th Annual Workplace Class Action Report - 2022 Edition

728 Annual Workplace Class Action Litigation Report: 2022 Edition 2015 government-debt exception must be invalidated and severed from the remainder of the statute. Id . at *14. Accordingly, the Court denied Defendant’s motions to dismiss. Sapan, et al. v. Yelp, Inc., 2021 U.S. Dist. LEXIS 220224 (N.D. Cal. Nov. 15, 2021). Plaintiff filed a class action alleging that Defendant placed calls to his cellular telephone without his consent when his number was registered on the National Do Not Call Registry in violation of the Telephone Consumer Protection Act (“TCPA”). Plaintiff filed a motion for class certification pursuant to Rule 23, which the Court denied. The Court found that Plaintiff failed to establish the numerosity requirement of Rule 23(a)(1). Plaintiff attempted to provide the number of class members by using: (i) Defendant’s prior acknowledgement that approximately 81% of its website listings had accurate phone numbers and thus 19% were wrong numbers; (ii) that approximately 71% of telephone lines in the United States are on the Do Not Call Registry; and (iii) Defendant made millions of calls to individuals on the Do Not Call Registry each year without their consent. The Court concluded that Plaintiff failed to establish any evidence to warrant a finding of numerosity, because he did not show how the general percentages about allegedly wrong numbers on Defendant’s call lists translated into a reasonable estimate of numerosity for his proposed class. In support of his motion, Plaintiff offered the declaration of an expert witness, who opined that it would be possible to take a list of numbers that Defendant called and analyze them to determine which numbers belonged to potential class members. The Court ruled that the declaration was highly problematic and was not responsive to the actual evidence in the case. The Court further noted that, during discovery, Plaintiff failed to obtain the call records, and therefore the expert did not actually run the proposed analysis on the data. For these reasons, the Court denied Plaintiff’s motion for class certification for failure to meet the numerosity requirement of Rule 23(a)(1). Scoma Chiropractic, P.A., et al. v. Dental Equities, 2021 U.S. Dist. LEXIS 34321 (N.D. Fla. Feb. 24, 2021). Plaintiff filed a class action alleging violations of the Telephone Consumer Protection Act (“TCPA”). A Magistrate Judge previously had recommended that Plaintiff’s motion for class certification be denied on the grounds chiefly that the class was not administratively feasible. Thereafter, the Court issued a stay in the action based an order on a petition pending before the Federal Communications Commission ("FCC") that had been filed by an unrelated third-party, AmeriFactors Financial Group, LLC ("AmeriFactors"), raising the issue of whether internet- based fax equipment qualified as a "telephone facsimile machine" within the meaning of the TCPA. Id . at *6. The FCC decided in the AmeriFactors order that online fax services were outside the scope of the TCPA. Plaintiffs thereafter filed a renewed motion for class certification seeking certification of a class of all persons or entities who were successfully sent a junk fax on Defendant’s behalf. Plaintiffs contended following the Magistrate Judge’s recommendation after they filed the first motion for class certification, the Eleventh Circuit ruled in in Cherry v. Dometic Corp ., 986 F.3d 1296 (11th Cir. 2021), that "administrative feasibility is not a requirement for certification under Rule 23." Id . at *11. Cherry further held that the requirement for ascertainability was limited "to its traditional scope: a proposed class is ascertainable if it is adequately defined such that its membership is capable of determination." Id . at *11-12. The Court explained that given the intervening change in controlling law, it no longer had the full benefit of the parties’ arguments or the Magistrate Judge’s recommendations. Id . at *17. Accordingly, the Court found good cause to deny without prejudice Plaintiffs’ amended motion for class certification and to require new briefing on a re-filed motion that addressed class certification with the benefit of the Eleventh Circuit’s guidance in Cherry on the issues raised by Plaintiffs’ class certification motion. Id . at *18. The Court therefore denied Plaintiffs’ motion for class certification. Van Elzen, et al. v. Global Strategy Group, 2021 U.S. Dist. LEXIS 9671 (S.D.N.Y. Jan. 19, 2021). Plaintiff filed a class action alleging that Defendants sent him an unsolicited text message survey in violation of the Telephone Consumer Protection Act ("TCPA"). Defendant American Directions moved to dismiss the claim against it for lack of personal jurisdiction under Rule 12(b)(2), and Defendant Global Strategy moved to stay the action pending the U.S. Supreme Court’s review of Facebook v. Duguid , 141 S. Ct. 193 (2020). The Court granted the motions. First, American Directions argued that the Court lacked personal jurisdiction over it because American Directions was not a New York corporation, did not have a principal place of business in New York, and did not contact Plaintiff in New York. Id . at *2. Global Strategy contended that Facebook v. Duguid could foreclose Plaintiff’s TCPA claim such that a stay was appropriate. Considering all the factors, and the totality of the circumstances alleged in the complaint, the Court concluded that Plaintiff failed to meet the requirements of New York’s long-arm statute. The Court held that although Plaintiff alleged the existence of a