TCPA Class Certification Denial Exposes Major Spousal Scheme

There are plenty of things I’d like to do with my wife one day. Take a trip to Greece. Finally convince her to go camping with me (never going to happen). But filing a class action with her as class representative is definitely not one of them. 

That’s exactly what one husband-and-wife duo tried to pull in the Eastern District of New York. Senior Judge Frederic Block made quick work of the scheme. 

In Wexler v. AT&T Corp., No. 15-CV-0686 (FB) (PK), 2018 U.S. Dist. LEXIS 20157 (E.D.N.Y. Feb. 5, 2018), the Court granted AT&T’s motion to strike class allegations based on the inadequacy of the class representative. The class representative was Dr. Eve Wexler, who was the wife of class counsel Shimshon Wexler. After AT&T alerted the Court to their relationship, Mr. Wexler quickly withdrew and was replaced by class counsel who had no relation to Plaintiff. However, Mr. Wexler made it clear that he still intended to pursue an award of fees for his work on the case prior to withdrawal. 

Plaintiff argued that Mr. Wexler’s withdrawal “mooted” the issue. Not so, said Judge Block. There’s no disputing Plaintiff would have an interest in a potential fee award to her husband, had he been appointed class counsel. “Courts have long found that a familial (or any other) relationship creates a conflict if it gives the class representative an interest in the fees class counsel might recover.” And that conflict didn’t just vanish after Mr. Wexler withdrew, especially because he was still planning to seek an award of fees for his work prior to withdrawal. 

The Court astutely observed that “[a]s class representative, Dr. Wexler should act to maximize [class] recovery and, by extension, minimize reductions to it. But her interest in the fee award supplies the opposite incentive.” The Court emphasized that because the “very nature of a class creates conflicts of interest between the class, class counsel and the class representative,” the requirements of Rule 23 must be “scrupulously enforced.” 

And enforced they were. The Court held that because Plaintiff had an interest in a possible fee award to her husband, “she cannot adequately represent the interests of absent class members,” and granted AT&T’s motion to strike.  Maybe the Wexlers should try salsa dancing instead.

Dorsey & Whitney

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