18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 729 contract between American Directions and Global Strategy, the complaint did not indicate that the contract was "ongoing," as opposed to a "single, completed agreement." Id. at *7. The place of negotiation and payment were also not conducted in New York. In sum, the Court found that American Directions was a Washington, D.C. corporation that contacted a Wisconsin resident, and thus there were no allegations that American Directions provided goods or services in New York, agreed to litigate matters in New York or pursuant to New York law, had personnel enter New York, or even sent solicitations or payments to New York. Accordingly, the Court dismissed the claim against American Directions. Global Strategy argued that the Supreme Court’s resolution in Facebook would resolve a question that could be determinative of Plaintiff’s TCPA claim and that further proceedings should wait until automatic telephone dialing system (“ATDS”) was defined. The Court agreed. It found that Plaintiff based his allegations on a text message addressed to him, and therefore likely sent using a list containing the names and numbers of persons to be contacted. Therefore, the Court reasoned that if Facebook were to establish that a prohibited ATDS must use a random or sequential number generator, Plaintiff’s claims could likely not survive a motion to dismiss under Rule 12(b)(6). Accordingly, the Court also granted Global Strategy’s motion to stay. Vandenberg & Sons Furniture, Inc., et al. v. Alliance Funding Group, 2021 U.S. Dist. LEXIS 11970 (W.D. Mich. Jan. 22, 2021). Plaintiff, a furniture store, filed a class action alleging that Defendant sent it unsolicited advertisements via fax in violation of the Telephone Consumer Protection Act (“TCPA”). Plaintiffs filed a motion for class certification of two classes pursuant to Rule 23, including one consisting of all those who received a fax and thereafter opted-out by faxing back an opt-out request, and one consisting of all those who received faxes on specific dates. The Court granted in part and denied in part the motion. Defendant used a third-party, WestFax, to fax potential customers, and contended that the numbers were collected by sales representatives’ cold-calls to potential customers. Defendant asserted that the only faxes it sent were to those potentials customers who provided a fax number during a cold-call and that it never bought fax lists or faxed any entity that did not provide a number. Defendant contended that individual issues of consent would defeat the predominance requirement of Rule 23. As a threshold matter, the Court noted that Defendant had only submitted four total pages in discovery, consisting of two invoices from WestFax, and a copy of the fax sent to Plaintiff. Defendant asserted that all other records were not kept in a central location or on a company server, as all sales representatives were in charge of their own spreadsheets of fax numbers. The Court determined that due to the lack of records, it would be difficult to conclude that Defendant had a policy of obtaining consent before sending any fax. The Court reasoned that there was no testimony of any sales representative, no evidence as to the number of sales representatives employed by Defendant, and no evidence of the process for obtaining numbers or sending faxes. The Court opined that it was not willing to accept that Defendant obtained every fax numbers via sales representative cold calling companies. Defendant further argued that since it had no fax transmission log, ascertaining class members would be impossible such that certification should be denied. The Court held that the class members in the proposed class of those who received faxes on specific dates could not be ascertained, as there was no record of when the faxes were sent. However, as to the class of those who opted-out of receiving future faxes, the Court ruled that because the opt-out list contained fax numbers that contacted WestFax, those class members could be ascertained. The Court further found that class certification of the opt-out class was the superior form of adjudication because whether they received the fax in question was a question common to all class members. The Court also determined that the class met all the remaining requirements of Rule 23, and therefore it granted Plaintiffs’ motion for class certification of all those who received an unsolicited fax and thereafter opted-out of receiving future faxes from Defendant or WestFax. (lxxv) The Adequacy Of Representation Requirement For Class Certification Nagel, et al. v. United Food & Commercial Workers Certification Union, Local 653 , 2021 U.S. Dist. LEXIS 19611 (D. Minn. Feb. 2, 2021). Plaintiff, a food services worker, filed a class action asserting claims against Defendant for breach of the duty of fair representation and violation of the Labor Management Reporting and Disclosure Act (“LMRDA”) relating to a collective bargaining agreement (“CBA”) that eliminated the previous 30- day and out retirement benefits afforded to union members. Plaintiff filed a motion for class certification, which the Court denied. Plaintiff sought to certify a class consisting of all members of the union who: (i) were bound by March 4, 2018 collective bargaining agreements between Defendant and SuperValu, Inc. (dba Cub Foods); Almsted’s Fresh Market; Driskill’s Downtown Market; Haug Companies; Jubilee Foods-Mound; Knowlan’s Supermarkets, Inc.; Oxendale’s Market; or Shakopee 1997 LLC (dba Radermacher’s); and (ii) under the terms