Ninth Circuit Affirms Denial of TCPA Class Due To "Significant Uncommon Questions" And Ascertainability Issues

Gannon v. Network Telephone Services, Inc., No. 13-56813 (9th Cir. Jan. 12, 2016) In a 3 paragraph unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit affirmed the trial court's denial of plaintiff's motion to certify a class of individuals who allegedly received "unauthorized" text messages stating:

The central issue in the case is whether the text messages were unauthorized. But, the proposed class includes at least the following groups: (a) those, like Gannon, who claim to have called an NTS phone line by mistake and may have discontinued the call before hearing the "mid-amble" that informed the caller of NTS's intent to send future text messages; (b) those who heard the mid-amble and did not follow its instructions as to how to opt out of receiving text messages; and (c) those who called the NTS phone line in response to an advertisement that expressly promised future text messages. To determine liability, the district court would be required to determine whether under each of these different factual scenarios -- and undoubtedly others -- the caller agreed to receive text messages. Given "the significance of those uncommon questions," the district court did not abuse its discretion by finding the requirements of Rule 23(b)(3) unsatisfied. The district court did not abuse its discretion by finding that the members of the proposed class were not readily ascertainable. The district court appropriately determined that it would be extremely difficult to ascertain the identifies of the individuals who had not consented to receive the messages.

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