Eleventh Circuit Decertifies TCPA Class on Traceability and Predominance Grounds

On November 15, 2019, the Eleventh Circuit decertified a Telephone Consumer Protection Act (TCPA) class in Cordoba v. DIRECTV, LLC (No. 18-12077, 2019 WL 6044305), finding that the plaintiff could not adequately identify potential class members without resorting to individualized inquiries.  The plaintiff alleged that DIRECTV failed to maintain an internal “do not call” list to track consumers who stated that they did not want to receive telemarketing calls, and called customers who indicated that they did not want to be called in violation of the TCPA regulation 47 C.F.R. 64.1200(d)(3).  Although the district court certified a class, the Eleventh Circuit ultimately concluded that the class could not be certified because the plaintiff could not demonstrate how many potential class members actually asked DIRECTV not to contact them, or how they could prove that they made such a request to DIRECTV, in order to establish an Article III injury for purposes of standing.

The plaintiff alleged that DIRECTV contracted with Telecel Marketing Solutions, Inc. (Telecel) to make marketing calls on its behalf.  The plaintiff claimed that he, and other class members, asked Telecel to stop calling, but that it failed to keep track of customers’ do-not-call requests and persisted in continuing to call customers in spite of their requests.  The district court below, however, certified a broader class of all individuals Telecel called while it failed to maintain an internal do-not-call list, finding that any individual issues would be “amenable to resolution by fairly ‘simple and objectively verifiable means.”  The Eleventh Circuit disagreed.

The Eleventh Circuit first determined that receipt of more than one unsolicited call made in violation of the TCPA and its regulations is enough to establish injury and standing under Article III.  The court recognized that the named plaintiff, who received calls from Telecel after he asked not to be contacted again, unquestionably had standing.  Likewise, potential class members who registered their numbers on the do-not-call registry, but received calls from Telecel anyway, also had standing because Telecel was not permitted to call those individuals absent prior consent or permission.

However, the court denied class certification because the proposed class was too broad, and potentially included individuals who never stated that they did not want to receive calls from Telecel. Those individuals would lack Article III standing to be class members because there was no prohibition against Telecel from contacting them, and they suffered no injury by Telcel’s failure to maintain an internal do-not-call list.  Whether Telcel failed to maintain an internal do-not-call list was irrelevant if any individual never told Telecel that they did not want to be contacted because they would not have been included on the internal do-not-call list, even if Telecel had maintained one.

The court went on to hold that the class could have been certified if there was a way to differentiate potential class members who stated that they did not want to be contacted by Telecel, from those who did not.  Yet, the Eleventh Circuit concluded that this could not be done without each class member testifying to whether they told Telecel to stop contacting them.  The court accordingly vacated class certification, finding that such a myriad of individual inquiries would overwhelm common class issues.

The Cordoba decision is similar to other TCPA decisions in which class certification has been denied where defendants are able to show that individualized evidence is necessary to establish that putative class members consented to the challenged calls, and thus lacked an Article III injury and standing.  This case involved a similar inquiry, but in reverse—the plaintiff here was unable to show which class members affirmatively stated that they did not wish to be contacted by Telecel and thus affirmatively prove an Article III injury because of Telcel’s failure to maintain an internal do no call list.  It remains to be seen whether, on remand, the Cordoba plaintiff can revise the proposed class definition sufficiently to meet Rule 23’s requirements.  In the meantime, LenderLaw Watch will continue to monitor the interplay of consent and class certification in TCPA cases, and will provide the latest updates as they occur.

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