Brian Clark v. Via Renewables, Inc.

Background

Brian Clark alleged that Via Renewables, Inc. violated the Telephone Consumer Protection Act (TCPA) in two ways: by calling a residential number listed on the federal Do Not Call Registry and by making marketing calls using prerecorded messages. Clark alleged that Via made ten calls to his residential phone number in March 2023 and left nearly identical messages about his natural gas bill. He was the only named plaintiff and sought certification of four proposed nationwide subclasses.

The court had previously denied Clark’s first request for class certification without prejudice and directed him to explain whether changing the class definitions would be futile. In the renewed motion, Clark proposed two broader subclasses based on Energy BPO call logs and two narrower subclasses limited to leads allegedly obtained through the BestAmericanSavings.com website. The amended definitions removed express-consent language from the class descriptions.

Via opposed certification and presented evidence that its vendors obtained consumer leads through webforms and stored consent records, including website metadata and session replays. As to Clark, Via submitted records it said showed that his name and contact information had been submitted through a BestAmericanSavings.com webform containing consent language. Clark denied visiting that website, submitting an online inquiry form, or giving Via or Energy BPO permission to call him.

Class-Certification Requirements

Federal Rule of Civil Procedure 23 requires a proposed class to satisfy several requirements. Among other things, the named plaintiff’s claims and defenses must be typical of the class, the named plaintiff must fairly and adequately represent the class, and common legal or factual issues must predominate over individual issues for the type of class sought here. The plaintiff must prove these requirements, rather than merely allege them.

Court’s Analysis

The court held that Clark failed to establish typicality and adequate representation. Because Clark testified that he never visited the lead-generating website or entered his information there, he could not make the same arguments about website disclosures and consent that would apply to class members who did visit the websites and submit their information. The court concluded that Clark’s position—that he never visited the website or provided his information—was not typical of class members who allegedly did so, and that he could not adequately represent those members’ interests.

The court also held that common issues did not predominate. Via presented evidence involving webforms and consent records from multiple websites and different time periods. The court found that determining whether individual class members visited a website and provided contact information would require individual inquiries. Clark did not propose a method for resolving that question for the class as a whole.

Clark argued for the first time in his reply that the leads might have been fraudulent because a web bot, employee, or lead-generator contractor may have copied customer information into the website. The court sustained Via’s objections and struck that argument and supporting declaration because Clark had not raised the theory earlier. The court added that, even if considered, the theory was speculative and did not establish predominance by a preponderance of the evidence.

Because Clark failed to satisfy the requirements concerning typicality, adequate representation, and predominance, the court did not address numerosity or commonality.

Disposition

The court DENIES Clark’s renewed motion for class certification. It also declines to grant leave for a third class-certification motion, stating that Clark’s earlier motion failed because of the consent issue, that he had been warned about the effect of his denial that he visited the website, and that his renewed motion did not adequately address typicality and adequacy. The court stated that Clark may prosecute his individual claim. It scheduled a further case-management conference for December 3, 2025, and required an updated joint case-management statement.