Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America and Dominguez v. Yahoo have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants. This is the first of two posts that will dissect those decisions and discuss their implications for the ever-growing number of defendants that are facing TCPA claims.
An essential requirement for certifying a class under Rule 23 is a means for presently ascertaining who is or is not a member of the proposed class. A trio of recent district court decisions has applied this ascertainability requirement to proposed TCPA class actions. The cases reach different conclusions as to whether a list of telephone numbers is a necessary or sufficient means of ascertaining class membership.
The Middle District of Florida recently denied class certification because the plaintiff failed to prove that consent (or more to the point, an alleged lack of consent) could be established on a classwide basis. In doing so, it confirmed that class action plaintiffs have the burden of proving that issues are susceptible to classwide proof even though a defendant may bear the burden of proving or disproving some of those issues at trial. See Shamblin v. Obama for Am., No. 13-2428, 2015 U.S. Dist. LEXIS 54849 (M.D. Fla. Apr. 27, 2015).
A court in the Northern District of Illinois recently denied class certification in a “fax blast” case because the plaintiff failed to meet its burden of proof in showing that the putative class was ascertainable where there was no evidence identifying the recipients of the faxes. Physicians Healthsource, Inc. v. Alma Lasers, Inc., et al., No. 12-4978, 2015 U.S. Dist. LEXIS 41339 (N.D. Ill. Mar. 31, 2015).
From the perspective of defense counsel, this case is a reminder of the importance of holding plaintiffs to their burden proof in showing that all of Rule 23’s requirements are satisfied when opposing a motion for class certification. As we have written previously, plaintiffs face a hurdle in showing a class is ascertainable where there is no objective criteria establishing the identities of recipients of a particular communication.
In Zarichny v. Complete Payment Recovery Servs., Civ. No. 14-3197, 2015 U.S. Dist. LEXIS 6556 (Jan. 21, 2015), Plaintiff Sandra Zarichny attempted to bring a class action on behalf of two classes against defendants Fidelity National Information Services (“FIS”) and Complete Payment Recovery Services (“CPRS”). Id. at *1-2. Zarichny alleges that the defendants called her eleven times because they incorrectly believed that she owed a debt based on her alleged failure to return textbooks that she rented. Id. at 7-8. In her complaint, Zarichny alleged that the Defendants deliberately harassed her by calling at inconvenient times. Id. at 9. Zarichny alleged that both corporations violated the TCPA and the Fair Debt Collections Practices Act (the “FDCPA”).
Fidelity and CPRS brought a motion to dismiss Zarichny’s complaint and a motion to strike her class allegations, which the court granted in part and denied in part.
Judge Kathleen M. Williams of the Southern District of Florida handed GEICO a decisive victory on September 29, 2014, when she denied a renewed motion to certify a class of individuals who purportedly received robo-calls from GEICO because she found that the plaintiff failed to provide sufficient proof of numerosity.
The statutory damages that have caused so many plaintiffs to file TCPA class actions have also caused some courts to find that class actions are not the superior method for adjudicating them. Federal Rule of Civil Procedure 23(b)(3) requires not only that common questions predominate over individual ones, but also that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Whether a class action is the superior method for adjudication depends on a number of stated and unstated considerations, among them “the class members’ interests in individually controlling the prosecution or defense of separate actions.” Fed. R. Civ. P. 23(b)(3)(A). As we have noted before, some courts have held that TCPA claims are categorically unfit for class treatment because $500-$1,500 plus attorneys’ fees and costs is adequate to incent individuals to file claims, is disproportionate to any actual damages, and is potentially ruinous if aggregated in a class action. Two state courts recently addressed this issue and reached contrary conclusions.
The Western District of Washington recently adopted a “preponderance of the evidence” standard for establishing the prerequisites of Federal Rule of Civil Procedure 23 and denied class certification in a TCPA case because the plaintiffs’ expert testimony did not meet the rigors of even a preponderance standard. See Southwell v. Mortgage Investors Corp. of Ohio, No. 13-1289 , 2014 U.S. Dist. LEXIS 112362 (W.D. Wash. Aug. 12, 2014).
As we have previously noted, several courts in the Middle District of Florida have made it abundantly clear that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempt to “pick-off” a named plaintiff. See Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.) (J., Merryday); Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.) (M.J., Spaulding). Last week, the court reiterated this stance yet again. See Dickerson v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014) (J. Moody).
In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.
Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).