Court Finds Fault With Preliminary Approval Motion, Directs Plaintiff to Supplement Record


The Southern District of Alabama recently denied a plaintiff’s motion for preliminary approval of a proposed classwide settlement of TCPA claims. See Bennett v. Boyd Biloxi, LLC, No. 14-0330-WS-M, 2015 U.S. Dist. LEXIS 163987 (S.D. Ala. Dec. 7, 2015). The plaintiff claims that he and some 70,000 other people received unlawful telemarketing calls promoting the defendant’s casino, resort, and spa. Describing the plaintiff’s motion as a “somewhat pro forma” submission that did not “come close to bearing his burden of persuading the Court to certify the proposed settlement class,” the court sent him back to the drawing board “to research and effectively present the legal argument . . . needed to support certification.”

While the court agreed that the plaintiff had identified many common questions—for example whether calls were telemarketing and whether the recipients had consented to them—it was not satisfied that there were any common answers as required by Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Specifically, the court found that the plaintiff had failed to address whether the experience of the 70,000 class members and the content of the more than 400,000 calls “varied in any meaningful way.” The court was similarly skeptical that the experience of the plaintiff (who received a few calls on a mobile number) was typical of the 70,000 or so putative class members (who received calls on mobile and residential numbers over two years and provided consent by joining the defendant’s rewards program in a multitude of ways). And after estimating that the average class member’s claim was worth between $3,000 and $9,000, the court disagreed that certifying a class action was ipso facto superior to allowing consumers to control the prosecution of their own claims on an individual basis. Finally, the court questioned whether there would be a feasible way to identify and provide notice to class members such that the action would be manageable as a class action.

The decision is notable not only because the court clearly took its gatekeeper role seriously, but also because the court’s concerns echoed arguments that the defendant had volunteered in an attempt to explain the reasonableness of the settlement:

Defendant was fully prepared to challenge class certification. Had the matter proceeded forward, Defendant expected through discovery to explore whether the elements of commonality and typicality could be met by the Settlement Class as a result of the differing methods by which each class member joined the rewards program at Boyd Biloxi and its predecessor entity. These differences alone may have given ample reason to deny certification. In addition, Plaintiff would have been required to demonstrate class members are identifiable, a difficult and cumbersome task in a world where cell phone subscribers frequently drop and exchange cellular telephone numbers. Finally, Defendant continues to believe that the class mechanism here may not constitute the superior method to resolution of these legal issues…. In light of these considerations a settlement with a certain outcome was a prudent and reasonable method of resolving this dispute.

Def.’s Brief in Supp. of Preliminary Approval at 4-6 (D.E. #85). The decision is an important reminder that a settlement class must still be certified as such, that arguments in favor of the reasonableness of a settlement should focus on the plaintiff’s ability to state a claim rather than the plaintiff’s ability to certify a class, and that the defendant should consider letting the plaintiff carry that water by himself.