The District Court for the Southern District of California certified a consumer class asserting violations of the Telephone Consumer Protection Act (“TCPA”) by defendant Bennett Law, PLLC.  Plaintiff alleged that she received numerous automated debt collection calls on her cell phone from Bennett without her consent.  The law firm failed to respond to her complaint, and the court entered a default.  The court then proceeded to consider plaintiff’s motion for class certification.  The court stated that the entry of default does not alter the requirement that it conduct a rigorous analysis of the Rule 23 requirements for class certification under Dukes.

Plaintiff’s proposed class consisted of all persons in the United States who received an automated call from Bennett on their cell phone and who had not previously provided consent.  The court first observed that over fifty examples existed of certified class actions under the TCPA with similar class definitions.  Despite the lack of discovery, the court determined that numerosity was satisfied and the potential class was sufficiently ascertainable under this definition.  Plaintiff identified numerous online forums where a vast number of complaints had been lodged against Bennett for violations of TCPA, and she demonstrated a reasonable basis to believe that the class could be specifically determined via discoverable access to Bennett’s technology and data.

The court then proceeded to find that the remaining Rule 23(a) and (b)(3) elements were satisfied where the core issue was whether Bennett used an automatic telephone dialing system or prerecorded or artificial voice message to make unsolicited calls.  With regard to the superiority element in particular, the court recognized that the TCPA does not provide for attorney fee shifting and the statutory damages are limited to $500 or $1,500 per call.  Therefore, the court found that a class action was the most efficient vehicle to achieve recovery for the putative class.

Whitaker v. Bennett Law, PLLC, Case No. 13-cv-3145 (S.D. Cal. Oct. 27, 2014).