NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIK MATTSON, Individually and on No. 21-35795 behalf of all others similarly situated, D.C. No. 3:18-cv-00990 Plaintiff-Appellant,

v. MEMORANDUM*

NEW PENN FINANCIAL, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted July 15, 2022 Submission Vacated July 18, 2022 Resubmitted March 22, 2023 Pasadena, California

Before: BENNETT and COLLINS, Circuit Judges, and FOOTE,** District Judge.

Erik Mattson (Mattson) appeals from the district court’s denial of class

certification for a claim under the Telephone Consumer Protection Act (TCPA).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation. We review a district court’s class certification decision for abuse of

discretion. Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 984 (9th Cir.

2015). This Court will uphold a class certification decision unless the district court

“identified or applied the incorrect legal rule or its resolution of the motion resulted

from a factual finding that was illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.” Castillo v. Bank of Am.,

NA, 980 F.3d 723, 728 (9th Cir. 2020) (cleaned up). We vacate the district court’s

decision and remand with instructions to consider our holding in Chennette v.

Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022).

In denying Mattson class certification, the district court concluded that

Mattson could not meet multiple requirements under Federal Rule of Civil

Procedure 23(a) because individual questions concerning whether he is a

“residential subscriber subject to the TCPA’s protections [would] predominate the

litigation.” After the district court reached that conclusion and we heard argument,

another panel of this Court issued a separate ruling in Chennette that touched on

issues relevant to this litigation. Chennette held, in particular, that “registered cell

phones that are used for both personal and business purposes are presumptively

‘residential’ within the meaning of” the relevant section of the TCPA. Chennette,

50 F.4th at 1225.

With that ruling in mind, we ordered supplemental briefing to address

2 Chennette’s impact on this case. The district court, however, did not have the

benefit of Chennette when it denied class certification. We thus decline to apply

the new legal standard in the first instance. Cf. Strategic Diversity, Inc. v. Alchemix

Corp., 666 F.3d 1197, 1206 (9th Cir. 2012) (describing our precedent as “noting

the prudence of remand in light of recent Supreme Court authority”); Horphag

Rsch. Ltd. v. Pellegrini, 337 F.3d 1036, 1041 (9th Cir. 2003) (remanding to district

court due to intervening authority). We vacate and remand for further proceedings

in light of Chennette.

VACATED AND REMANDED.1

1 The parties shall bear their own costs on appeal.

3