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Certification Denied in TCPA Class Action Against Cannabis Delivery Company

a cannabis plant with the setting sun behind it

Tue, 02/04/2020 - 11:42

A recent, unsuccessful Telephone Consumer Protection Act (TCPA) class action demonstrates how the emerging legal cannabis industry is a potential target for TCPA lawsuits.

The defendant in the case—Derval v. Xaler, Case No 2:19-CV-01881-ODW (JEMx), 2020 U.S. Dist. LEXIS 13912 (C.D. Cal. Jan. 28, 2020)—is Xaler, a California-based cannabis delivery company. The plaintiff claimed that Xaler was texting its customers without consent and that the potential class “number[ed] in the thousands.” However, the plaintiff was unable to provide any evidence of this class other than screenshots of 78 online, user reviews. The court determined that this did not demonstrate anything other than that Xaler had at least 78 customers and denied certification because of the lack of “actual numerosity.”

While this class action was denied certification, it is still significant in how it relates to the intersection of TCPA litigation and the murky waters of the semi-legal cannabis industry. Last October, a different California district court ruled on a TCPA class action against a cannabis delivery company, granting a motion by the defendant to compel arbitration. In December of last year, a Florida plaintiff filed a TCPA class action against a medical marijuana provider. As the old adage goes, once is an example, twice is a coincidence, three times is a trend.