On August 1, 2022, the United States District Court for the Northern District of West Virginia granted class certification to a group of about 114,000 individuals who, despite being on the national Do-Not-Call Registry, received at least two robocalls placed on behalf of DirecTV.  The court concluded that this was “a model case for the application of the class action mechanism.”

In 1991, Congress enacted the Telephone Consumer Protection Act (“TCPA”), which, among other things, created a Do-Not-Call Registry that prohibited the initiation of telephone solicitations to residential telephone numbers listed on the registry.  The TCPA provides a private right of action for injunction and monetary relief for any person who receives more than one telephone call within a 12-month period by the same entity.

In the instant case, in 2017, DirecTV contracted with a local dealer, AC1, to promote its services in Kentucky, Ohio, and West Virginia.  As part of DirecTV’s agreement, AC1 agreed to comply with marketing guidelines, which expressly prohibited “cold calling,” placing a call to a potential customer, to market DirecTV.  Still, AC1 engaged in cold-calling over a twelve-month period.

The plaintiffs allege that, during this 12-month period, phone numbers that were registered on the national Do-Not-Call Registry received at least two telemarketing calls from AC1 acting on behalf of DirecTV, in violation of the TPCA.  The named plaintiffs, David Vance and Roxie Vance, assert that on June 1, 2018, and again on November 29, 2018, they received a telemarketing call to their phone number listed on the Do-Not-Call Registry. A third plaintiff, Carla Shultz, states that she received two calls on July 17, and July 19, 2018 from AC1 on behalf of DirecTV, despite being on the Do-Not-Call Registry.  The plaintiffs’ expert analyzed the phone numbers listed in AC1’s call data, identified the phone numbers in the records on the Do-Not-Call Registry, and then determined which of those phone numbers received two or more calls from AC1 within a twelve-month period.  This produced a lengthy list of, again, about 114,000 telephone numbers.

DirecTV argued that class certification was inappropriate because (1) it was not liable for the actions of AC1, and (2) the named plaintiffs did not have a reliable method of determining class members, making it impossible to determine whether each potential class member’s claims under the TPCA were sufficiently similar for class certification.  The court rejected both of DirecTV’s arguments.

In deciding to certify the class, the court relied heavily on Krakauer v. Dish Network, LLC, 925 F.3d 643, 654–55 (4th Cir. 2019), which was a similar robocall dispute concerning the TCPA.  In Krakauer, the Court of Appeals for the Fourth Circuit found the class to be ascertainable because the defendant’s own records could be used to show when the calls were placed and whether the calls went through.  The court found that the same set of circumstances were true in the instant case.

The court also found that the numerosity, commonality, typicality, and predominance requirements were all satisfied by the proposed class.  The three named plaintiffs alleged that they received telemarketing calls from AC1 on behalf of DirecTV on phone numbers that were on the Do-Not-Call Registry, and these claims were shared by the close to 114,000 unnamed plaintiffs.  The court concluded that this case was a “model case for the application of the class action mechanism.”

This case, as well as Krakauer, provides a clear road-map for certifying a TCPA class in a class-action lawsuit.  Any business that uses telemarketing, or contracts with other businesses for marketing, should be aware of the TCPA and ensure that its policies comply with the law—or potentially face stiff consequences.