Advertising Law Blog

In 2021, the plaintiff received a single pre-recorded call asking her to join Gold’s Gym. She did not consent to receive such a call; a different person with a similar number had visited Gold’s Gym the prior month and had provided his telephone number, but a gym employee mistakenly entered a slightly different number into Gold’s Gym’s database. That resulted in the illegal call to plaintiff, which was one of about 4000 made by the Gold’s Gym. The plaintiff sued for violation of the TCPA, but styled the suit as a class action, thus putting all 4000 or so calls into play. With a $500-per-illegal-call provision, that turned a seemingly minor legal infraction into a $2 million, high-stakes litigation for the defendant.

The plaintiff’s motion for class certification failed. Judge Blumenfeld ruled that the Plaintiff is entirely atypical of the class she seeks to represent and would be an inadequate class representative due to the fact that she would be unable to argue the central consent issues determining Defendant’s TCPA liability to the other class members. The court reasoned as follows:

Because Plaintiff—unlike all or virtually all of the other class members—never signed any agreement consenting to be contacted by Defendant, she has no stake in whether the agreements signed by other class members satisfied the requirements of the TCPA and its implementing regulations, and therefore lacks standing to make any argument about their validity.
[…]
If Plaintiff were to seek certification of a narrower class of individuals who, like Plaintiff, had no relationship with Defendant and received a pre-recorded message because Defendant mistakenly recorded a wrong phone number in its system, Plaintiff would likely be a typical and adequate representative. But she produces no evidence—nor even suggests—that any other person who received the pre-recorded message was similarly situated, much less that Defendant entered enough wrong numbers to satisfy the numerosity requirement[.]

TAKEAWAY: The effect of the denial of class certification on this case was immense. The ruling limited Gold’s Gym’s potential exposure from around $2 million to just $500. Shortly after Judge Blumenfeld issued his ruling, the case was voluntarily dismissed, indicating a settlement was reached. Even if a telemarketing call violates the TCPA, vigorous defense of the class-action aspects of a lawsuit can save the day for a guilty defendant.