TCPA class action suit against Dick's results in class certification denial

By Cassandra Stone | Dec 30, 2016

SANTA ANA, Calif. (Legal Newsline) – A class action against Dick's Sporting Goods Inc. was recently denied class certification by California federal judge, U.S. District Judge Cormac J. Carney, because the plaintiff was ruled to be an inadequate class representative.

Phillip Nghiem alleged that the sporting goods retailer had violated the Telephone Consumer Protection Act (TCPA). According to evidence presented by Dick's, Nghiem was responsible for signing up for multiple mobile alert programs in addition to signing up for Dick's program during the time his law firm had previously alerted Dick's of possible TCPA violations. Nghiem is also currently a plaintiff's attorney specializing in consumer disputes, according to the evidence brought forth by Dick's. Carney based his ruling on this particular set of evidence, stating that Nghiem was not an adequate class representative, and that his allegations were atypical of other consumers in the class.

“The court determined that the named plaintiff, Phillip Nghiem, was not an adequate class representative based on a simple test," Kathryn Rattigan, attorney at Robinson & Cole LLP, told Legal Newsline. "The class representative must fairly and adequately represent the interests of absent class members."

According to Rattigan, in this particular case, the court determined that class certification was improper because the interests of Nghiem and the class conflicted, and therefore the class could not be certified. In his decision, Carney also stated that the 9th Circuit authority prohibits district courts from granting class certification if there is a danger that absent class members will suffer if their representative presents a conflict of interest of atypical defenses. 

“Many courts have been looking to Spokeo v. Robins for guidance on standing," Rattigan said. "Here, the court ruled that the plaintiff had a concrete and particularized injury using the Spokeo ruling as its foundation. However, in Spokeo, the court ruled, 'Harm does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.'”

"But here, the court determined that standing existed because TCPA violations necessarily cause harm to consumers, unlike the Fair Credit Reporting Act claims that were at issue in Spokeo," Rattigan continued. "The TCPA sets a standard that any autodialed texts or pre-recorded telephone calls are prohibited without prior express consent from the consumer because of the undue cost to consumers (particularly when the text or call is to a mobile telephone number), the nuisance caused by such texts and telephone calls, and consumers’ privacy interests.”

Carney ruled that TCPA violations necessarily cause harm to consumers, and thus such claims can satisfy the Supreme Court’s ruling in Spokeo v. Robins. Nghiem filed his complaints for the class action lawsuit in January, claiming Dick’s violated the TCPA on at least eight occasions when text messages were sent to his cellphone by an automatic telephone system after he alleges he revoked his consent to receive them.

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