In Labou v. Cellco Partnership, No. 2:13-cv-00844-MCE-EFB, 2014 U.S. Dist. LEXIS 26974 (E.D. Cal. Mar. 3, 2014), the named plaintiff sued cell phone company Verizon. She alleged that Verizon had used an automatic dialer to call her cell phone in an attempt to get her former brother-in-law to pay his cell phone bill, a practice that allegedly violated the Telephone Consumer Protection Act (TCPA). And she sought to certify a class of everyone else Verizon had contacted with an automatic dialer.
There was a twist: the TCPA does not prohibit collection calls so long as the recipient is not being charged. Verizon did not charge its customers for these auto-dialed calls, so the only people actually harmed were those very few–like Ms. Labou–who were not Verizon customers but were contacted anyway.
So Verizon decided not to waste time: it filed a motion to deny certification, on the grounds that Ms. Labou–a non-customer who nonetheless received a Verizon collection call–was not typical or adequate of the proposed class. (In addition to her unique damages, she also had not signed the arbitration agreement other Verizon customers had.)
The plaintiff tried to argue that the motion was premature, but the court was having none of that argument. It found that Ms. Labou was not typical of the proposed class:
To meet the requirements of a class, not only must the claims arise out of the same course of conduct, but also such claims must contain similar legal arguments to prove Defendants’ liability. … As the TCPA permits collection calls so long as the recipient is not being charged, Plaintiff’s circumstance of being a non-customer with a non-Verizon issued phone is atypical from the class of Verizon customers. Verizon customers have written contracts containing provisions both for automated calls upon prior written consent and for arbitration. No amount of discovery can erase these plain distinctions between Plaintiff and Verizon customers. Plaintiff’s claims are therefore not typical of the class as a whole.
(Emphasis added, internal citation omitted.) It also found that, based on Verizon’s argument, she was not an adequate class representative:
However, Verizon need not provide evidence to prove that Plaintiff’s claim is inadequate. To the contrary, even under a motion to deny class certification, it is Plaintiff who bears the burden of showing she is an adequate representative. Plaintiff’s contention that she is an adequate representative simply because she pled she is an adequate representative falls short of that burden.
(Emphasis added, internal citation omitted.)
So what’s the takeaway here? If the plaintiff is in a plainly unique situation, it may well be worth filing a motion to deny certification immediately (particularly in the Ninth Circuit). It is unlikely that the plaintiff (who is in control of the facts of her own claims) will be able to fix this kind of problem by asking for discovery. And a successful motion may save a great deal of money in discovery costs.