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.