<b><i>Online Extra:</b></i> Manatt Blocks Phone Sexting Class Action

A team from Manatt, Phelps & Phillips rebuffed a would-be class action by people who got unwanted dirty text messages from a phone sex provider.

The U.S. Court of Appeals for the Ninth Circuit last month agreed that the lower court properly denied certification because figuring out potential class members would be 'extremely difficult.'

In 2012, Paul Gannon sued in Network Telephone Services Inc. in U.S. District Court for the Central District of California, claiming that the company violated the Telephone Consumer Protection Act by sending unsolicited text messages.

Gannon said he got a text that read 'Hot honeys r ready to pleasure u and make u cumm. $25 credit on your first call!' The message also included instructions to opt out of receiving future messages.

Gannon said he didn't consent to receive the text. The company got his number because he dialed the sex line by mistake, he said, but hung up before he heard the message from Network Telephone Services informing him that he would receive future text messages unless he opted out.

The proposed class included people like him who called by mistake, those who heard the message but didn't follow the opt-out instructions, and those who called in response to ads that specifically promised future text messages.

'Plaintiff's proposed class is unascertainable and unidentifiable,' wrote U.S. District Judge R. Gary Klausner in 2013. 'The court cannot determine whether an individual is part of the class without extensive individual inquiry into the merits of plaintiff's claim, which ultimately makes identification of the class administratively unfeasible.'

The Ninth Circuit panel ' Judges Harry Pregerson, Consuelo Callahan and Andrew Hurwitz ' agreed, ruling the district court did not abuse its discretion.

Network Telephone Services was represented at trial by Manatt partner Robert Platt and on appeal by partner Benjamin Shatz.

'It's gratifying to see the court agree with Network Telephone Services that class certification was not appropriate,' Platt said. 'Class actions alleging violations of the TCPA are often brought with the primary purpose of recovering legal fees. Our client is very pleased with the decision by the Ninth Circuit in this matter.'

Gannon was represented on appeal by Daudt Law; Kreindler & Kreindler and the Terrell Marshall Law Group.

Jenna Greene'writes for'The Litigation Daily, an ALM affiliate of'Internet Law & Strategy. She can be reached at'[email protected]'or on Twitter'@jgreenejenna.