Ellzey & Associates Prevails in Ninth Circuit on TCPA Appeal

Jarrett Uncategorized

In a surprising ruling over a year ago, the magistrate and district court granted the Defendant’s preemptive Motion to Decertify Plaintiff’s Class Action before we even had a chance to conduct class discovery.

This case involves allegations of Defendant New Penn Mortgage Company’s violation of the Do-Not-Call list provision of the Telephone Consumer Protection Act. Plaintiff alleges that New Penn purchased leads that were not properly screened for legally-sufficient consent and did not screen them internally once receiving the leads. This resulted in Mattson, our client, receiving multiple unsolicited telemarketing calls from New Penn.

In the District Court, New Penn attempted a motion for summary judgment based on the idea that Mattson’s dual use of his phone (both business and personal) automatically deemed his phone a business line. The court denied the motion, but used language in its opinion that New Penn exploited to argue in a subsequent Preemptive Motion to Decertify the Class that Mattson was an a-typical class member due to his dual use of the phone. The District Court agreed trial issues would focus on this question rather than class-wide issues and granted the motion. We appealed.

While on appeal, the Ninth Circuit ruled on a case ahead of us named Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022). This case contained nearly identical facts, although our case is arguably much clearer on the business line v. residential line issue. The Ninth Circuit did not affirm the trial court’s ruling in Mattson, and, instead, remanded the case to be reviewed by the trial judge in consideration of the holding in Chennette – i.e. cell phones are presumed residential lines when used for personal and business calls.

Here’s what the Ninth Circuit said about the Mattson case after Chennette:

“We review a district court’s class certification decision for abuse of discretion. Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 984 (9th Cir. 2015). This Court will uphold a class certification decision unless the district court “identified or applied the incorrect legal rule or its resolution of the motion resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Castillo v. Bank of Am., NA, 980 F.3d 723, 728 (9th Cir. 2020) (cleaned up). We vacate the district court’s decision and remand with instructions to consider our holding in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022).

In denying Mattson class certification, the district court concluded that Mattson could not meet multiple requirements under Federal Rule of Civil Procedure 23(a) because individual questions concerning whether he is a “residential subscriber subject to the TCPA’s protections [would] predominate the litigation.”

After the district court reached that conclusion and we heard argument, another panel of this Court issued a separate ruling in Chennette that touched on issues relevant to this litigation. Chennette held, in particular, that “registered cell phones that are used for both personal and business purposes are presumptively ‘residential’ within the meaning of” the relevant section of the TCPA. Chennette, 50 F.4th at 1225.

With that ruling in mind, we ordered supplemental briefing to address “Chennette’s impact on this case. The district court, however, did not have the benefit of Chennette when it denied class certification. We thus decline to apply the new legal standard in the first instance. Cf. Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012) (describing our precedent as “noting the prudence of remand in light of recent Supreme Court authority”); Horphag Rsch. Ltd. v. Pellegrini, 337 F.3d 1036, 1041 (9th Cir. 2003) (remanding to district court due to intervening authority). We vacate and remand for further proceedings in light of Chennette.

VACATED AND REMANDED”