A Gordon & Rees San Diego-Orange County litigation team, including assistant managing partner Miles D. Scully, partner Douglas Smith and senior counsel Jason R. Dawson, won an order from the U.S. District Court for the Southern District of California denying class certification of an action filed against a national convenience food franchisor under the Telephone Consumer Protection Act and Business & Professions Code 17200.
The plaintiff claimed that the franchisor had sent to his cell phone an unsolicited “spam” promotional text message for its Solana Beach franchise. The plaintiff sought certification of a nationwide class of 7 million members, and statutory damages of $1,500 per class member.
Gordon & Rees persuaded the District Court to confine initial discovery to the limited issues of the franchise company’s procedure for obtaining consumer telephone numbers and of the plaintiff’s implied consent to receive the promotional text message. After deposing the plaintiff, Gordon & Rees pre-emptively filed its motion to deny class certification.
The District Court granted the motion, agreeing – based on the impeachment of the plaintiff’s deposition testimony – that the plaintiff’s allegations and his credibility problems made him atypical of the proposed class and an inappropriate class representative.