A District Court judge in Wisconsin has denied a motion from a plaintiff to certify a class in a Telephone Consumer Protection Act case, ruling that the one ringless voicemail the plaintiff received may show the plaintiff was harmed, but the plaintiff must show that other members of the class were harmed as well.
The Background: The plaintiff is an insurance agent who received a ringless voicemail from a marketing company that works with insurance agents and financial advisors. The plaintiff filed suit, alleging the defendant violated the TCPA by sending prerecorded messages to individuals without first obtaining the prior express consent to do so.
The Ruling: It is impossible for the plaintiff to prove that everyone who received a ringless voicemail from the defendant was upset and injured by the action, noted Judge William Griesbach of the District Court for the Eastern District of Wisconsin.
“Van Elzen assumes that every insurance agent who received just one ringless voicemail from Advisors Ignite suffered the same harm he claims to have sustained as a result of receiving a message offering a way to substantially increase his income,” Judge Griesbach wrote. “That seems doubtful. Advisors Ignite did not contract with SlyBroadcast because it wanted to harass or annoy potential customers. It no doubt thought that some number of insurance agents that received its message would be interested in learning of the services it offered that could significantly increase their income. And presumably some of the recipients of the messages it sent were happy to receive them. They may have even followed up by calling Advisors Ignite. Some may in fact have benefitted from receiving the information Advisors Ignite provided. Even those that did not call may have felt unharmed by learning of what was offered and were not annoyed or harmed. They may well have found the information worth the little effort it takes to delete a message after it is received.”