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Todd C. Bank v. Caribbean Cruise Line, Inc.

United States District Court, E.D. New York

August 27, 2014

TODD C. BANK, Plaintiff,
v.
CARIBBEAN CRUISE LINE, INC., Defendant.

TODD C. BANK, Kew Gardens, NY, Pro Se Plaintiff.

Jeffrey Backman, GREENSPOON MARDER, P.A., Fort Lauderdale, FL, Attorneys for Defendant.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge.

Pro se Plaintiff Todd Bank brings this putative class action against Caribbean Cruise Line, Inc. ("CCL") alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227. Bank has moved to certify a class pursuant to Federal Rule of Civil Procedure 23. Because I conclude that Rule 23's requirement for adequate representation of the proposed class is not satisfied, the motion is denied.

BACKGROUND

Bank alleges that in August 2012 he received two telephone calls on his residential telephone line from CCL or a third party operating on CCL's behalf that used a prerecorded voice to state that if he stayed on the line and completed a survey he would be given an opportunity to take a cruise. See Compl. ¶¶ 7-8, Nov. 8, 2012, ECF No. 1. Bank claims that these phone calls violated 47 U.S.C. § 227(b)(1)(B), which makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" unless the call is covered by an exemption, none of which are relevant here.

Bank moved on July 18, 2014, to certify a class consisting of:

all persons to whose residential telephone lines CCL, or a third party acting with the authorization of CCL, placed one or more telephone calls using an artificial or prerecorded voice that delivered a message that advertised the commercial availability or quality of property, goods, or services, other than Defendant, its officers, employees, representatives, and their families (the "Class"), during the period from February 7, 2012, to the commencement of this action until the present....

Compl. ¶ 18, Nov. 8, 2012, ECF No. 1.

ANALYSIS

A. Rule 23 Standards

Rule 23(a) provides that:

One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a); see also Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) ("To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a): numerosity, commonality, typicality, and adequacy."). In addition, certification must be "deemed appropriate under one of the three subdivisions of Rule 23(b)." Brown, 609 F.3d at 476. Here, Bank seeks certification under Rule 23(b)(3), which provides that a class may be maintained if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual ...


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