Xbox Text Message Class Action Lawsuit Denied Certification

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A California federal judge has refused to certify a class action lawsuit accusing Microsoft Corp. of sending unsolicited text messages to consumers in order to advertise its Xbox 360 video game console, saying there are “significant qualms” about the manageability of making the Telephone Consumer Protection Act lawsuit a class action.

U.S. District Judge Janis Sammartino said that the Xbox text message class action lawsuit would be too unwieldy to be dealt with as a class action because it will “require individual proof” from each Class Member that they did not provide express consent to receive text messages from Microsoft. This makes a class action lawsuit not the best way to handle these cases, which will vary.

“In sum, ‘when the complexities of class action treatment outweigh the benefits of considering common issues in one trial, class action treatment is not the ‘superior’ method of adjudication,” Sammartino wrote.

The other major issue with Judge Sammartino found with certifying the Xbox text message class action lawsuit is that the potential difficulties in notifying Class Members, calculating damages, and distributing damages would be unmanageable.

“The court has several significant qualms about the manageability of this class action, and accordingly this factor favors Microsoft,” she said.

Sammartino also expressed concern about the merits of evidence in this case.

“In particular, the court believes that it may be impossible — or, at the least, certainly unduly difficulty and burdensome — to resolve the issue of express prior consent.”

In addition, “it does not seem likely that discovery will provide the necessary answers, because the information simply no longer exists,” Sammartino added.

The judge explained that the necessary records needed to determine whether or not consent was given have been destroyed by Social Mix Media Group, the third-party company Microsoft hired to help with advertising by sending out text messages — leaving the court with only “dead ends” in terms of investigation and discovery.

“In light of this unusual factual scenario, it seems unlikely that the parties have the ability to discover the consent language, if any, that was presented to members of the proposed class,” the judge wrote.

And proving that there was not prior consent before receiving a text message “is one of the three elements of a TCPA claim.”

Come&Stay Inc., the Social Mix Media Group subsidiary and advertising company that sent out the text messages ended all U.S. operations in 2009 and dissolved in 2012.

“This suggests that, rather than certifying the class, it may be best to allow individuals plaintiffs who known that they received  one of the Xbox texts to decide whether to bring suit,” the judge concluded.

The TCPA class action lawsuit was brought by Illinois resident Neil Smith, who said that Microsoft had violated the Telephone Consumer Protection Act of 1991 by sending out text-messages to his cell phone without his prior consent.

The plaintiff is represented by Sean Patrick Reis of Edelson McGuire LLP.

The Xbox Text Message Class Action Lawsuit is Smith v. Microsoft Corp., Case No. 3-11-cv-01958, in the U.S. District Court for the Southern District of California.

If you or someone you know received unsolicited text messages, cell phone calls, or faxed advertisements, legal options are available. Learn more and get a free legal consultation regarding a claim’s eligibility at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation. Experienced legal professionals are available to determine if you have case, so act now.