Last week, a California federal judge, U.S. District Judge Cormac J. Carney, denied a request for class certification in the Telephone Consumer Protection Act (TCPA) class action against Dick’s Sporting Goods Inc. (Dick’s) because the court determined that the named plaintiff, Phillip Nghiem, was not an adequate class representative. Dick’s presented evidence to the court showing that Nghiem did sign up for multiple mobile alert programs (and also signed up for Dick’s program during the time when his law firm had already alerted the retailer of possible TCPA violations), as well as evidence of the simple fact that Nghiem is a plaintiffs’ attorney specializing in consumer disputes. Judge Carney found that this evidence made Nghiem an inadequate class representative and that his claims were untypical from the rest of the consumers.
Judge Carney also stated in his decision that Ninth Circuit authority directs district courts not to grant class certification if there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.
However, Judge Carney did rule against Dick’s argument that named plaintiff, attorney Phillip Nghiem, had not alleged a concrete and particularized injury, and therefore lacked standing; Judge Carney instead ruled that TCPA violations necessarily cause harm to consumers, and thus such claims can satisfy the Supreme Court’s ruling in Spokeo v. Robins (i.e. that the violation of a procedural right granted by a statute can be sufficient in some circumstances to constitute injury-in-fact).
Nghiem filed this lawsuit back in January, alleging that Dick’s violated the TCPA on at least eight occasions when text messages were sent to his cell phone by an automatic telephone system after he had revoked his consent for Dick’s to do so.