Federal Court Denies Certification, Declines To Infer A Lack of Consent From A Lack Of Documentary Evidence Of Consent

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).

Lori Shamblin alleged that Obama for America, DNC Services Corporation and New Partners Consulting, Inc. made “auto-dialed and prerecorded calls urging the recipients to vote for Barack Obama….” Id. at *4. Shamblin alleged that “two unsolicited auto-dialed calls to her cellular telephone” violated the TCPA because she did not give the Defendants her cell phone number, let alone “her express consent to call her cell phone.” Id. at *3, *5. She filed suit on behalf of not only herself but also a putative class consisting of “[a]ll persons in Florida who received one or more non-emergency telephone calls from Defendants in September through November 2012 in support of President Obama’s re-election to a cellular telephone through the use of an automatic-telephone-dialing system of an artificial or pre-recorded voice, and for whom Defendants’ records do not show prior express consent for those calls.” Id. at *11.

The Middle District of Florida recently denied certification of that class. It began by noting that “[t]he burden of proof to establish the propriety of class certification rests with the advocate of the class, and failure to establish any one of the four Rule 23(a) factors and at least one of the alternative requirements of Rule 23(b) precludes class certification.” Id. at *12 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997)). It then found that Shamblin had not satisfied her burden for three reasons.

First, the Court determined that “there can never be common answers to the questions of whether (1) the telephone number dialed was assigned to a cellular telephone at the time of the call and (2) whether the subscriber consented to be called.” Id. at *17. Judge Covington held that simply “list[ing] some common questions does not satisfy commonality” because there was an absence of “classwide proof on these outcome-determinative issues,” meaning that “individualized proof will be required for each and every plaintiff, which defeats the purpose of class certification.” Id. at *17, *18 (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011)). Shamblin had tried to put the rabbit in the hat by defining a class that included called parties “for whom Defendants’ record do not show prior express consent,” the implication being that the burden of proof at the class certification stage should shift to the Defendant. See Shamblin, 2015 U.S. Dist. LEXIS 54849, at *11. The Court rejected her request to infer a lack of consent from a lack of documentary evidence of consent, reasoning that she was “not entitled to a presumption that all class members failed to consent” and that “Defendants have a constitutional right to a jury determination as to whether any person consented to receiving calls to their cellular telephone.” Shamblin, 2015 U.S. Dist. LEXIS 54849, at *18 (citing Rink v. Cheminova, Inc., 203 F.R.D. 648, 652 (M.D. Fla. 2001)).

Second, the Court held that even if there were a common answer to a crucial question, individualized inquiries would still predominate. Rule 23(b)(3) is satisfied when “‘the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members [predominance], and that a class action is superior to other available methods for fairly and efficiently adjudicating the whole controversy [superiority].’” Id. at *24. Defendants argued that prior express consent was obtained in a multitude of ways (e.g., signups, campaign contribution, petitions) and that “short of calling each class member to testify on the issue on consent, there is no way to determine whether the TCPA was in fact violated with each call.” Id. at *26-27. The Court agreed and held that, because the “TCPA ‘allows consent to be given orally, in writing, electronically, or by any other means, as long as the consent is expressly given to the particular entity making the call,’ …. [i]ndividualized inquiries into consent (including where, how, and when) will predominate.” Id. at *28-29 (quoting Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014)). In support of its decision, the Court cited several TCPA decisions denying certification due to the existence of individualized inquiries into consent. Id. at *29-31.

After determining that Shamblin had not established predominance, the Court also found that “class wide resolution of the dispute [was] not superior to other methods of adjudication.” Shamblin, 2015 U.S. Dist. LEXIS 54849, at *31. Defendants asserted that a class action was not the superior method of adjudication because individual issues predominated, alternative methods to adjudicate individual TCPA claims were both available and commonly used, and the potential for substantial aggregated damages for statutory damages that are grossly disproportionate to actual damages raised due process issues. The Court examined the superiority factors enumerated in 23(b)(3), agreed that a class action was not the superior method to adjudicate Shamblin’s claims, and placed particular emphasis on the predominance of individualized issues. Id. at *31-32 (“‘the predominance analysis … has a tremendous impact on the superiority analysis … for the simple reason that, the more common issues predominate over individual uses, the more desirable a class action lawsuit will be ….’”).

Third, the Court concluded that Shamblin’s attempt to certify a “hybrid class for injunctive and declaratory relief under Rule 23(b)(2) and monetary damages under Rule 23(b)(3)” was unsustainable because Shamblin failed to “set forth sufficient evidence to demonstrate that the monetary relief requested [did] not predominate over the injunctive and declaratory relief requested.” Id. at *24-25. Defendants argued that injunctive and declaratory relief under 23(b)(2) were categorically unavailable and the “predominant relief requested [was] monetary.” Id. at *23. Judge Covington agreed that Shamblin could not seek injunctive relief against the campaign organization since the President is constitutionally barred from running for a third consecutive term, “certification under 23(b)(2) would be improper because Obama for America cannot be enjoined from an activity that will not take place in the future.” Id. at *23.

Judge Covington’s Opinion confirms that plaintiffs have the burden of proving that critical questions can be proven on a classwide basis, even if defendants happen to bear the ultimate burden of proof on some of those issues, and that a class action is not the appropriate vehicle to navigate through a TCPA dispute when individual determinations on consent exist.

John S. Yi

About the Author: John S. Yi

John Yi represents clients in civil and criminal litigations in federal court, as well as investigations and enforcement actions by the Federal Trade Commission (FTC), the U.S. Department of Justice (DOJ), the Securities and Exchange Commission (SEC), and other federal and state regulatory bodies. For clients in health care and other sectors, he handles a full array of antitrust issues. John has helped secure merger clearances from federal regulators and defended clients’ interests in suits alleging a variety of anticompetitive conduct. He has assisted companies with internal investigations and compliance strategies. John also has experience handling all aspects of civil litigation, including discovery, settlement, dispositive motions, trial advocacy and appellate work. John also defends a number of class action cases with a wide variety of claims, including issues arising under federal and state antitrust laws, the Telephone Consumer Protection Act (TCPA) and the Fair Credit Reporting Act (FCRA).

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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