Following the Supreme Court’s Facebook ruling the Plaintiff’s bar has shifted away from ATDS cases and toward TCPA cases arising from prerecorded calls or marketing calls to numbers on the DNC list.

While class actions involving DNC violations have found some success–the Fourth Circuit Court of Appeals has called these cases “tailor-made” for certification–a new decision out of Northern California suggests DNC cases may not be certifiable at all in many circumstances–and that is a huge deal.

In Payne v. Sierva Networks, Inc. 2024 WL 3585119 (N.D. Cal. July 29, 2024) the Court granted an affirmative motion to DENY certification in a suit arising out of alleged calls to numbers on the DNC in the business to business setting.

As I have said many times, just because a call is made for a business purpose does not protect a company from violating the DNC rules. If the number called is residential then the called party is still protected. And many times a consumer will use a number for both residential and commercial purposes.

In Payne the court determined that figuring out which numbers in the class were business numbers versus residential would require individualized proof. This is true because the group of numbers targeted were business numbers to begin with and sorting out which seemingly business numbers were actually residential numbers was impossible absent individualized proof including:

(1) how plaintiffs hold their phone numbers out to the public; (2) whether plaintiffs’ phones are registered with the telephone company as residential or business lines; (3) how much plaintiffs use their phones for business or employment; (4) who pays for the phone bills; and (5) other factors bearing on how a reasonable observer would view the phone line.

In the Payne court’s view there was just no way to evaluate these pieces of information in the context of a class action:

Payne is correct that “[w]hether Matrack can introduce proof to defeat [the residential] presumption in some cases is a matter for discovery.” ECF No. 22 at 13. However, the question raised by Matrack’s motion is not whether the issue requires discovery; it is whether it can be resolved by common proof… But, in this case, the issue is whether phone numbers contacted by Matrack—all of which were registered with the USDOT, which is some indication of a non-residential use—qualify as residential for purposes of the TCPA. “[R]esolving each phone number’s residential status requires a fact-intensive inquiry. And the burden to show the residential status is on [Payne],” who, to obtain class certification, must “advance a viable theory employing generalized proof to establish residential status.” Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 131 (N.D. Tex. 2020). Payne has failed to do so. While it is possible that some of the numbers registered with the USDOT—including Payne’s own—might qualify as residential under the fact-specific inquiry required by Chennette, Payne has made no argument as to how that question can be answered without individualized inquiries.

WOW!

This is obviously a huge ruling for anyone making B2B calls. Although it does not change the substantive law, the court’s determination that certification of TCPA DNC cases in the B2B setting really may be a game changer here. Plaintiff’s lawyers will not want to bring cases like these if they cannot credibly claim to be certifiable. This could mean a big drop in these sorts of cases–which are highly predatory in nature to begin with.

Absolutely massive win here. Really very impressive stuff.