The U.S. District Court for the Southern District of California recently granted Wilshire Consumer Capital’s (WCC) motion to deny class certification in a putative class action filed under the Telephone Consumer Protection Act (TCPA).
The named plaintiff, Alu Banarji, filed suit after receiving numerous telephone calls on her cell phone.  According to the Court, Ms. Banarji’s father, Sami, took out a loan with WCC and on the loan application he listed his daughter’s cell phone number as his own.  Ms. Banarji is the primary caregiver for her father.  When Mr. Banarji failed to make payment, WCC began calling the cell phone number he had listed on his loan application to inquire about the debt.  Ms. Banarji claims she had no involvement with her father’s loan and she repeatedly asked WCC to stop calling her cell phone.
Following some limited discovery, including the depositions of both Mr. Banarji and Ms. Banarji, WCC filed a Motion to Deny Class Certification under Fed. R. Civ. P. 23.  WCC’s Motion to Strike, filed at the same time, was denied as untimely.  The Court found the timing of WCC’s Motion to Deny Class Certification appropriate despite Ms. Banarji’s argument that the motion was premature and she should be permitted to conduct discovery on the certification issue.
In its Motion to Deny Class Certification, WCC challenged Ms. Banarji’s ability to meet the typicality requirement in Rule 23(a)(3).  In the Ninth Circuit, the typicality requirement is construed permissibly and requires only that the representative’s claims be “reasonably coextensive with those of absent class members.”  However, the Court went on to clarify that if unique defenses exist that threaten to divert the focus of the litigation to the detriment of the class as a whole, the typicality requirement is not satisfied.
Judge Roger T. Benitez found that although Ms. Banarji was probably annoyed by the calls, her case is unique to herself and perhaps a small subset of the proposed class.  This is particularly true as Ms. Banarji’s phone number was given to WCC by her father; her father indicated that the phone number was in fact his own; and it is possible given the family relationship that Ms. Banarji’s father may be a non-subscriber customary user of the phone line, which would give him the authority to consent to receiving robocalls on that line.  Judge Benitez found the majority of the proposed class may suffer as Ms. Banarji will be engrossed with disputing WCC’s arguments regarding her individual case.
As such, the Court granted WCC’s Motion to Deny Class Certification, holding that Ms. Banarji’s claim is not typical of the proposed class’s claims.
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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA,, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.