Hypertouch, Inc. v. Superior Court

This writ proceeding arises out of a class action alleging the sending of unsolicited advertisements to a telephone facsimile machine in violation of the Telephone Consumer Protection Act of 1991 (TCPA) ( 47 U.S.C. § 227 (b)(1)(C)), which authorizes a private right of action in state court. (Id., § 227(b)(3).)

Petitioner Hypertouch, Inc., a California corporation based in Redwood City, is the named plaintiff, and real party in interest Perry Johnson, Inc., a consulting company that does business in California, is the defendant. In addition to actual and punitive damages, and injunctive relief, plaintiff seeks statutory damages of $500 for each violation of the TCPA, and treble that amount for each willful violation. ( 47 U.S.C. § 227 (b)(3).) The complaint also alleges *1534 causes of action for civil conspiracy and unfair business practices. (Bus. & Prof. Code, § 17200 et seq.)

Plaintiff seeks writ relief from the trial court order approving notice to the class insofar as it provides that, in order to participate in this civil action, individual members of the certified class “must opt-in to same and not opt-out,” and the judgment “will only bind those class members…

I concur with the result reached in the majority opinion, but not at all in the route by which it is reached. That route, I suggest, utilizes a quite inappropriate vehicle—a case ineffectively handled below—to render an opinion on not one but two issues (is “opt-in” permitted as a form of class notification under rule 1856(e) of the California Rules of Court and is “opt-in” permissible for purposes of class certification?), neither of which has to be addressed in order to resolve the dispute before us.

In contrast to the majority, I would grant the writ and return this matter to the trial court with express directions to assign this case to a single judge for all purposes, after which that judge should (1) direct counsel for the respective parties to propose their recommended methods for further* 1 notifying potential class members of the pendency of this action, then (2) carefully review who did what to whom concerning discovery regarding the identities of the recipients of the improper faxes in question, and then (c) in light of the parties’ respective class-notification proposals and the court’s findings on the *1557 discovery issue, reconsider its ruling regarding the…

Epstein, Becker & Green, P.C., Joseph D. Miller, Leslie J. Mann, San Francisco, Pilchak Cohen & Tice, P.C., Daniel G. Cohen, for Real Party in Interest, Perry Johnson, Inc.

This writ proceeding arises out of a class action alleging the sending of unsolicited advertisements to a telephone facsimile machine in violation of the Telephone Consumer Protection Act of 1991 (TCPA) ( 47 U.S.C. § 227 (b)(1)(C)), which authorizes a private right of action in state court. ( Id., § 227(b)(3).)

Petitioner Hypertouch, Inc., a California corporation based in Redwood City, is the named plaintiff, and real party in interest Perry Johnson, Inc., a consulting company that does business in California, is the defendant. In addition to actual and punitive damages, and injunctive relief, plaintiff seeks statutory damages of $500 for each violation of the TCPA, and treble that amount for each willful violation. ( 47 U.S.C. § 227 (b)(3).) The complaint also alleges causes of action for civil conspiracy and unfair business practices. (Bus. & Prof.Code, § 17200 et seq.)

Plaintiff seeks writ relief from the trial court order approving notice to the class insofar as it provides that, in order…