A defendant successfully avoided class certification in a TCPA suit when the plaintiff failed to provide evidence about the number of recipients who allegedly received unwanted text messages.

Christopher Legg sued Voice Media Group claiming he received “mobile spam” in violation of the statute. Although Legg once subscribed to receive messages from VMG, he alleged that he continued to receive messages after sending a “STOP ALL” message to the company.

Legg’s motion defined the potential class as “[a]ll cellular telephone subscribers with Florida area codes” who received unwanted messages after attempting to unsubscribe from VMG’s text messaging alert service from March 1, 2012, until the date of certification.

Analyzing the four requirements for certification under Federal Rule of Civil Procedure 23(a), U.S. District Court Judge James I. Cohn said Legg would be an adequate representative of the class and satisfied the commonality and typicality requirements.

But lack of evidence to satisfy Rule 23(a)(1)’s numerosity requirement doomed the plaintiff’s motion, despite the “relatively light” burden of showing a group of more than 40 class members.

In his motion, Legg contended that the class would be “comprised of at least 1,026 cellular telephone subscribers,” but his sole support was the declaration of his telecommunications expert who based his opinion on a review of a spreadsheet provided by VMG’s vendor that reflected 1,026 cellular subscribers sent “STOP ALL” messages to VMG between March 4, 2013, and July 22, 2013.

However, the court granted VMG’s motion to exclude the expert’s testimony with regard to the size of the proposed class. Even if the court had allowed the expert’s testimony, Judge Cohn said he would not have certified the class because the expert’s testimony was unsupported speculation.

“The obvious problem with the conclusion [the expert] has drawn from this information is that Legg’s proposed class is not coextensive with individuals who: (1) sent ‘STOP ALL’ messages; and (2) continued to receive advertisements from VMG,” Judge Cohn explained. “Because [the expert’s] count of the 1,026 subscribers who sent ‘STOP ALL’ messages to VMG does not speak to how many of those individuals continued to receive VMG’s advertisements, it does not reflect the size of the proposed class. [The expert’s] conclusion that each of these individuals is a class member thus has no support in the underlying documents.”

Although the plaintiff tried to argue that some of the subscribers on the list sent more than one “STOP ALL” text, implying they had continued to receive messages from VMG, the court said this was an assumption “based not on any data, but on … speculation,” and was “of no use to Legg in satisfying the numerosity requirement.”

Lacking competent evidence upon which to even estimate the size of the proposed class, Judge Cohn concluded Legg could not satisfy Rule 23(a)(1), declaring certification improper.

To read the order in Legg v. Voice Media Group, click here.

Why it matters: While VMG scored a victory and avoided class certification in the suit, other companies are still facing the plaintiff in the courtroom. Legg, a practicing attorney and self-described consumer advocate, recently filed a similar TCPA action against American Eagle Outfitters, as well as a putative class action alleging E-Z Rent A Car violated the Fair and Accurate Credit Transactions Act by printing more than five digits of his credit card number on a receipt.