Somewhere Out There, a Certain Gecko Lets Out a Sigh of Relief

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.

In 2012, the plaintiff Carlos Cabrera filed a putative class action alleging that GEICO, through Bell, LLC, a third-party collection agency, used LiveVox, a non-attended dialing system, to place over 120 calls to him on his cellular telephone and leave prerecorded messages. The calls were allegedly part of a larger GEICO initiative—forming the basis for the putative class action—to attempt to recover indemnity for amounts GEICO paid out in insurance claims from the purported tortfeasors. The plaintiff claimed that GEICO obtained the purported tortfeasors’ cell numbers “from police reports . . . from the call recipient’s insurance carrier, or through . . . skip tracing,” but never obtained consent from the tortfeasors themselves.

The plaintiff sought to certify a class of all U.S. persons to whom (1) a telephone call was placed through LiveVox that featured an artificial or prerecorded voice, (2) to a phone number provided to LiveVox by Bell, (3) whose contact information was provided to Bell by GEICO, and (4) who never provided Bell, GEICO, or any third party acting on their behalf, prior express consent to place telephone calls to the phone number called.In considering a renewed motion for class certification, Judge Williams found that the plaintiff failed to satisfy Rule 23’s requirements. Specifically, she found that the plaintiff failed to present sufficient evidence to establish numerosity, defined in this case as more than 40 class members.

In her decision, Judge Williams found that commonality, typicality, adequacy, predominance and superiority were all satisfied, but found that the “Plaintiff simply has not provided the Court with enough evidence for the court to make a supported factual finding regarding numerosity.” Specifically, she pointed to uncertainties as to: (1) what percentage of calls were to cell phones versus residential landlines , (2) what percentage of the GEICO calls featured an artificial or pre-recorded voice, and (3) what percentage of recipients’ phone numbers were provided to Bell by GEICO. The court noted that, “[i]n sum, the Court finds that had Plaintiff satisfied the Rule 23(a) requirements, class certification under Rule 23(b)(3) would be appropriate.” But because each of the four factors of Rule 23(a) must be met for a class to be certified, the plaintiff’s failure to prove numerosity was fatal to his bid for class certification.

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