Guarding Against Class Certification

When a well-known media holding company with 11 alternative newspapers nationwide and Pulitzer Prize winning content became the target of a TCPA class action lawsuit, the company turned to Holland & Knight's Class Action Litigation and Arbitration Team to show that there was no evidence of thousands of persons who had been affected by its text messages.
Guarding Against Class Certification

Voice Media Group Inc. (VMG) turned to Holland & Knight's Class Action Litigation and Arbitration Team for counsel when an attorney-plaintiff hurled allegations at VMG regarding sending unwanted text message ads and promotions to thousands of persons throughout the United States. With a class action lawsuit in U.S. District Court, VMG knew millions of dollars could be at stake and had to act fast.

Many readers gravitate toward VMG's content as its papers are known for a commitment to journalism and cultural coverage. From the Village Voice to LA Weekly, its coverage has garnered Pulitzer Prizes and a strong following that have signed up for text alerts and social media posts. In the case against VMG, plaintiff Christopher Legg – who is also a practicing attorney – sued VMG on behalf of a proposed class for allegedly sending out thousands of unlawful texts, which he characterized as mobile spam and a violation of the Telephone Consumer Protection Act (TCPA). Mr. Legg had sought to unsubscribe from VMG's text alerts but claimed that his requests went unanswered. With texts still forthcoming, he claimed that the alleged mobile activity also drove up his and other customers' phone bills, compromised cell phone battery life and decreased a device's ability to store data.

Holland & Knight's TCPA Class Action Litigation Team rallied an aggressive defense to show that Mr. Legg's allegations did not meet the requirements of a TCPA class action lawsuit. In order for a case to be certified as a class action, plaintiffs have to demonstrate that there are numerous persons in the class, that there are questions of law or fact common to the class and that the claims of the representatives are typical of those of the class. Furthermore, they must show that their complaint is most efficiently handled as a single case and not as numerous, separate disputes.

To demonstrate that VMG sent allegedly unlawful text messages to numerous persons, Mr. Legg hired an expert witness who claimed that VMG sent thousands of offending text messages to hundreds of persons. But as the case unfolded against VMG, Holland & Knight's litigators showed that Mr. Legg's expert witness had no grounds for his assumptions in regard to class size, and they persuaded the court to exclude the expert witness's proposed testimony. With a failure to factually demonstrate the size of the proposed class, U.S. District Judge James I. Cohn agreed with the arguments our team presented and denied Mr. Legg's motion for class certification.

Holland & Knight's defense of VMG in this dispute demonstrates the strength of its experienced litigation attorneys. The team for this particular case includes litigation lawyers from the Litigation and Dispute Resolution, Class Action Litigation and Arbitration, and TCPA Class Action Litigation practice areas. With a substantial background in these types of emerging TCPA cases, Holland & Knight is savvy in helping clients protect their interests and also being proactive to reach their target audience when it comes to mobile messaging in this developing area of the law.