CHICAGO — A Chicago federal judge has allowed a lawsuit over unwanted text messages to continue as a class action, even though the lead plaintiff could be in line to collect more than $100,000 if she were to litigate the matter on her own.  

In a Jan. 11 order, U.S. District Judge Elaine Bucklo granted an amended complaint for class action certification filed by plaintiff Christy Griffith against ContextMedia Inc. for allegedly violating the federal Telephone Consumer Protection Act (TCPA) by sending unwanted automated text messages. 

After subscribing to daily automated “Healthy Tips” texts for a period, Griffith allegedly replied to the service indicating she no longer wished to receive the text messages. However, her phone allegedly continued to receive unwanted messages for months, totaling approximately 80 texts after her first attempt to stop them, according to the decision.

Beginning her analysis, citing Messner v. Northshore University HealthSystem 2012, Bucklo stated Griffith’s proposed class action suit must meet Rule 23, which stipulates the requirements for an adequate class, including “numerosity, typicality, commonality, and adequacy of representation.”

“She must further establish that the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members, and that a class action is superior to other available methods of resolving the controversy,” Bucklo wrote in the order.

With 2,200 individuals allegedly receiving texts along with Griffith, the proposed class met the numerosity requirement, said Bucklo, noting ContextMedia did not dispute this.

However, the media company did disagree on other points.

“[The] defendant’s principal objections to class certification are that [the] plaintiff’s motion articulates a different class than the one proposed in her complaint, that the proposed class is not ascertainable and is fail-safe and that the proposed class fails Rule 23(b)’s predominance and superiority requirements,” Bucklo wrote in the order.

Addressing each arguement, Bucklo began with the class definition.

“It is not uncommon for courts to modify the proposed class at the certification stage to avoid such problems as over-inclusivity and fail-safeness,” Bucklo wrote in the order, adding “I am not persuaded that [the] defendant is any way prejudiced by allowing these refinements, and the law of this circuit does not mandate denial of certification on the principle that [the] plaintiff must stick to the definition proposed in her complaint.”

Based on the case of Mullins v. Direct Digital 2015, the proposed class met the requirements, according to the judge.

“The law of this circuit is clear: a class that is ‘defined clearly and based on objective criteria’ is ascertainable, even if its members may be difficult to identify,” Bucklo wrote. "The proposed class again fits the bill. The class definition is neither imprecise nor amorphous, nor does membership depend on subjective criteria."

Lastly, Bucklo addressed the predominance and superiority arguments under Rule 23(b)(3). The predominance requirement stipulates that common issues "predominate" over individual issues in a class. The superiority requirement states that the proposed class must be "superior" to any other alternative methods for resolving the legal dispute.

"[The] defendants’ central theory is that because plaintiff’s individual recovery is potentially significant - as much as $124,000 if she proves willful violations of the TCPA - it is not appropriate for class treatment," Bucklo wrote. "It is true that 'if a class member has a large enough stake to be able to litigate on his own, the case for class-action treatment is weakened...' In the absence of any evidence to suggest that all or many of the absent class members have claims as substantial as [the] plaintiff’s, I decline to deny certification on that ground.”

Griffith is represented in the case by attorneys Jeffrey Grant Brown, of Chicago, Jeremy Glapion, of Wall, N.J. and Kristen Law Sagafi and Andrew Jonathan Silver of the firm of Tycko & Zavareei LLP, with offices in Oakland, Calif., and Washington, D.C.

ContextMedia Health is represented by the firm of Faegre Baker Daniels LLP, of Chicago and Minneapolis.

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Glapion Law Firm Jeffrey Grant Brown P.C. U.S. District Court for the Northern District of Illinois

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