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Troutman Pepper Hamilton Sanders LLP

01/13/2021 | News release | Distributed by Public on 01/13/2021 23:08

Storytelling & Professional Plaintiffs: The District Court for the Northern District of Texas Denies Class Certification in TCPA Case

In Hirsch v. USHealth Advisors, LLC, Judge Pittman, of the United States District Court for the Northern District of Texas, denied Aaron Hirsch's ('Plaintiff') Motion for Class Certification, which was based on allegations that USHealth Advisors, LLC ('USHA') and USHealth Group, Inc. ('USGA') (collectively 'Defendants') violated the Telephone Consumer Protection Act and Maryland equivalent of the Telephone Consumer Protection Act. In doing so, the Court put a dent in claims where professional plaintiffs seek to profit off the TCPA.

In that case, Plaintiff developed a plan to 'profit through the TCPA.' When Plaintiff was called by a lead-generation vendor, Plaintiff, on multiple occasions, stated he was interested in buying health insurance (although he was not), scheduled a phone call with a USHA agent, and, after receiving the call from the USHA agent, asked to be placed on the internal do not call list. When Plaintiff received subsequent calls and texts, he moved to certify a class of similarly situated persons for violations of the TCPA and the Maryland equivalent of the TCPA.

In order for a class to be certified, the four prerequisites under Rule 23(a) of the Federal Rules of Civil Procedure (i.e. numerosity, commonality, typicality, and adequacy of representation) must be met. Here, although the Court held that Plaintiff met the numerosity and adequacy of representation prerequisites, it held that Plaintiff failed to meet the commonality and typicality prerequisites, and accordingly denied class certification.

First, the Court held that Plaintiff failed to meet commonality, which requires 'questions or law or fact common to the class.' The Court reasoned that Plaintiff's common questions did not 'generate common answers apt to drive the resolution of the litigation,' as the central issue in the case was whether the calls Defendants made were prohibited, not whether Defendants made the calls. As answers to the central issue required evidence as to each proposed class member that would need to be obtained from multiple sources (including whether each respective class member consented to the call or was called for a 'residential' purpose), the Court reasoned that each number 'had its own story' and held that Plaintiff failed to 'advance a viable theory of generalized proof to establish liability.' Furthermore, the Court reasoned that Defendants could not be held vicariously liable for calls made by agents, as Plaintiff could not show that each class member was called by Defendants' agent and each of the 20,000 or more agents had a different relationship to Defendants-impacting an agency analysis for liability purposes.

Second, the Court held that Plaintiff failed to meet the typicality requirement of Rule 23(a), characterized by a test inquiring as to whether 'other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.' Specifically, the Court reasoned that Plaintiff's claims and defenses were not typical of other members of the proposed class, as Plaintiff deliberately scheduled telephone appointments with Defendants' agents for the sole purpose requesting placement on Defendants' IDNC list and had a close relationship with an attorney for the proposed class. The Court emphasized that such behavior indicated Plaintiff's status as a 'professional plaintiff,' and found that such conduct 'raise[d] a significant danger that [the] litigation [would] focus on issues and defenses unique to Plaintiff.'

Finally, for reasons set forth above, the Court held that Plaintiff failed to meet the Rule 23(b) predominance requirement, as Plaintiff failed to show that 'common questions predominate over questions affecting only individual members.' Accordingly, the Court denied Plaintiff's Motion for Class Certification.