Hi TCPAWorld! Here’s a massive development from the Eastern District of Wisconsin! On January 18, 2024, Judge William C. Griesbach denied certification in Van Elzen v. Advisors Ignite USA LLC, based upon failing to meet the predominance, typicality, and superiority requirements of Rule 23.

Plaintiff Van Elzen alleged that Advisors Ignite USA, through the use of SlyBroadcast’s ringless voicemail technology, made unauthorized prerecorded calls to cellular phones, violating the TCPA.

Essentially, Judge Griesbach’s ruling came down the fact each potential class member had individualized experiences as a result of the defendant’s calls:

Van Elzen assumes that every insurance agent who received just one ringless voicemail from Advisors Ignite suffered the same harm he claims to have sustained as a result of receiving a message offering a way to substantially increase his income. That seems doubtful. Advisors Ignite did not contract with SlyBroadcast because it wanted to harass or annoy potential customers. It no doubt thought that some number of insurance agents that received its message would be interested in learning of the services it offered that could significantly increase their income. And presumably some of the recipients of the messages it sent were happy to receive them. They may have even followed up by calling Advisors Ignite. Some may in fact have benefitted from receiving the information Advisors Ignite provided. Even those that did not call may have felt unharmed by learning of what was offered and were not annoyed or harmed. They may well have found the information worth the little effort it takes to delete a message after it is received.

In other words, the court found that due to the varied reactions to these messages—ranging from potential annoyance to perceived benefit—”at least as to the issue of standing [] common issues of fact do not predominate.”

And tying into the issue of predominance, the court found that the plaintiff’s claims did not necessarily mirror those of the entire proposed class. Since “presumptively” some class members viewed the calls as beneficial, the plaintiff’s experience of harm was not typical of the class—thus, defeating the typicality requirement of Rule 23.

Additionally, based upon the failure to meet the predominance and typicality requirements, the court was not persuaded that a class action was the superior means of adjudication.

This is a great ruling that underscores the difference between winning a case on substantive grounds – which is often difficult especially where a plaintiff denies providing consent – as opposed to winning outright on certification which should be straight forward when injury is not uniform throughout the class. Importantly here, the court really focused on the realities of TCPA cases rather than just relying purely on theory. In fact, the court even noted that certification in this case can very well bankrupt the defendant:

This is especially true in cases brought under statutes such as the TCPA, which ‘makes violators strictly liable for cumulatively very heavy statutory penalties.’ [] In this case, for example, Van Elzen contends that Advisors Ignite transmitted more than 15,000 prerecorded ringless voicemail messages, which would result in a minimum of more than $7.5 million dollars in statutory damages. If trebled, the amount would exceed $22.5 million. Judgment for either amount could readily bankrupt a small business such as Advisors Ignite.

We will keep an eye on this one!