United States: NDGA Says You Can't "Squibb" National TCPA Class

On October 18, the Northern District of Georgia issued an Order denying attempts by defendants IDT Corporation and IDT Telecom, Inc. (collectively "IDT") to strike a putative Telephone Consumer Protection Act class on grounds established in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017). In Dennis v. IDT, No. 1:18-cv-02302 (N.D. Ga. Oct. 18, 2018), the plaintiff, on behalf of a national class, alleged that IDT inundated consumers with unsolicited telemarketing calls, including to numbers that were on the National Do Not Call Registry and numbers for which IDT did not have consent to call. IDT moved to dismiss the complaint or, in the alternative, strike class allegations on Bristol-Myers grounds, i.e., the premise that the federal court could not exercise personal jurisdiction over claims brought on behalf of putative class members not from Georgia.

In Bristol-Myers, the Supreme Court held that nearly 600 non-Californians who filed suit in the state alleging they were injured by the drug company's blood-thinner drug Plavix couldn't move forward with their claims. The Supreme Court held that the California high court's ruling exceeded the due process limitations of the Fourteenth Amendment. Yet, the majority declined to address whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. In her dissent, Justice Sonia Sotomayor noted the loophole the majority's ruling presented, highlighting that "[t]he court today does not confront the question whether its opinion here would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there."

With Justice Sotomayor's dissent in mind, IDT urged the Northern District of Georgia to answer the question left unresolved by the Bristol-Myers court in its motion to strike the nationwide class allegations. In support thereof, IDT relied on a handful of decisions from the Northern District of Illinois that have applied Bristol-Myers and dismissed or struck claims of nonresident, unnamed class members in putative class actions. However, Judge Leigh Martin May did not take the bait. Instead, Judge May's 8-page opinion differentiated between federal class action disputes (such as the TCPA claim brought by Dennis) and state mass tort claims. Judge May noted that the TCPA case before her failed to raise due process concerns such as the ones that contributed to the result in the Bristol-Myers dispute: Unlike mass tort actions where each plaintiff is actually named as a plaintiff, class actions are spearheaded by one or more plaintiffs who seek to represent a class of similarly situated individuals. Highlighting the "impracticality of conducting a specific jurisdiction analysis when the contacts of each absent class member are not yet known," Judge May declined to apply Bristol-Myers in the class context.

The Northern District of Georgia's decision rejecting the application of Bristol-Myers to federal class actions joins a similar group of decisions across the country, including Becker v. HEN Media, Inc., 2018 WL 3007922 (S.D. Fla. June 6, 2018); Tickling Keys, Inc. v. Transamerica Fin. Advisors, Inc., 2018 WL 1701994 (M.D. Fla. Apr. 4, 2018); Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d 114 (D.D.C. 2018); Casso's Wellness Store & L.L.C. v. Spectrum Lab. Prods., Inc., 2018 WL 1377608 (E.D. La. Mar. 19, 2018); Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360 (N.D. Ga. 2018); In re Chinese-Manufactured Drywall Prods. Liab. Litig., 2017 WL 5971622 (E.D. La. Nov. 30, 2017); Swamy v. Title Source, Inc., 2017 WL 5196780 (N.D. Cal. Nov. 10, 2017); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017); and Morgan v. U.S. Xpress, Inc., 2018 WL 3580775 (W.D. Va. July 25, 2018)). Thus, while Bristol-Myers gave mass tort defendants nationwide relief, the Dennis v. IDT decision reflects the growing trend that the same jurisdictionally-based relief is likely unavailable for nationwide class action defendants.

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