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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Technological Change & Commonality – Hartman v United Bank Card Inc

Posted in Certification

As marketing guru Seth Godin has put it frequently, we live in an attention economy.  Most of us are busy people, and getting unwanted interruptions can be a huge hassle. That is one reason why class actions against blast-faxers and robo-callers have such appeal; they seem like the ideal way to punish people who won’t take the time to individually market to us. But just because these interruptions can be truly annoying does not mean they make good class actions.

Case in point: Hartman v. United Bank Card Inc., 2012 U.S. Dist. LEXIS 144759 (W.D. Wash. Oct. 4, 2012). Ed Hartman owned a drum store and percussion studio known as The Drum Store. He had a business line, and he was dismayed to find several unsolicited voicemails on it from United Bank Card, which was offering low rates and new equipment for accepting credit card payments. So he sued. His lawyers subpoenaed ConnecTel, an automatic dialing service, and got hold of a spreadsheet detailing all of the numbers that UBC had automatically dialed.

They sought certification of a class including:

All Washington residents who received one or more commercial solicitations from UBC directly or through its agents, including but not limited to IPS, through the use of an automatic dialing and announcing device.

UBC opposed the class on both commonality and typicality grounds. Its primary argument was that there was no way of telling from the list of phone numbers who might actually have received a call.

Although the ConnecTel spreadsheet purportedly identifies each call made, ConnecTel’s records do not show whether a message was left, or (if a message was left) which message was used. If ConnecTel’s platform detected that a live person was answering the call, [*39] then the platform played a message that would simply apologize and terminate the call. Defendants assert that such a message does not meet the statutory definition of "commercial solicitation" and therefore would not violate RCW 80.36.400.

Defendants also assert that, with the advent and rapid spread of technology that renders telephone numbers portable, it is impossible to know based on the ConnecTel spreadsheet alone whether telephone numbers with Washington State prefixes were actually located within Washington State at the time of IPS’s calls.

(Emphasis added.)  What did the defendant mean by "technology that renders telephone numbers portable?" As the court explained:

Due to the prevalence of new technology in the telecommunications industry which creates portable telephone numbers, such as call forwarding, VoIP (voice over internet protocol) telephones, Google Voice, Skype, or Magic Jack, IPS cannot know with certainty where the business owners it called were physically located at the time it made the calls.

Plaintiff’s counsel responded (as plaintiff’s counsel have since the days of yore) by arguing that these were "common defenses for Defendants to prove." The court, however, recognized a large difference between the days of yore and now: namely, the Supreme Court’s decision in Dukes.

These defenses are not "common" in that they can be resolved on a class-wide basis "in one stroke." See Dukes, 131 S.Ct. at 2551. Rather, these are defenses that will require individualized hearings with respect to each telephone call. As a result, the court will need to resolve Defendants’ liability with respect to each potential class member on an individualized basis.

The court also held that Mr. Hartmann had not demonstrated typicality (it was not clear if the rest of the class had faced actual voicemails), nor had he demonstrated a need for undivided injunctive relief under Rule 23(b)(2), or predominance under Rule 23(b)(3).

The takeaway for defendants in this case? When considering whether an issue is truly common, don’t forget about the variations that technological change may impose. We live in a rapidly-changing world, that often means that allegedly "common" courses of conduct are not nearly as common as they first appear.