Court Denies Class Certification Due to Plaintiff’s Lack of Objective Criteria and Lack of Evidence

The Western District of Michigan recently denied a motion to certify a class after holding that the class was not ascertainable and the plaintiff had not offered persuasive evidence in support of the motion. Visser v. Caribbean Cruise Line, Inc., No. 13-1029, 2020 WL 415845 (W.D. Mich. Jan. 27, 2020).

The plaintiff alleged that Caribbean Cruise Line had violated the TCPA by using either an ATDS or an artificial or prerecorded voice without his prior consent. Specifically, he alleged that the call began with a prerecorded message that was followed by a live person who told him that he had won a free all-inclusive cruise. The plaintiff stated the caller told him that he had entered his phone number into a website called “” Not believing this was true, the plaintiff told the caller that he had questions about the cruise. The caller then transferred the plaintiff to an agent who answered Plaintiff’s questions and provided details about the cruise.

Plaintiff sought to certify a nationwide class of people who “(1) received one or more calls that were made by, on behalf of, or for the benefit of, or otherwise relate to the Defendants; (2) which either: (a) delivered a message using either or both an automatic telephone dialing system or an artificial or prerecorded voice; or (b) either failed to state Defendant’s identity, or failed to state Defendant’s telephone number or address; (3) without the prior express consent of the called party, and without an established business relationship as substantiated by Defendants’ records; (4) between February 25, 2013 and September 3, 2013 (“Class Period”); (5) identified by the CCL’s marketing campaign telephone number 877-210-8866 (6) whose (i) telephone number appears in Defendants’ records of those calls and/or the records of their third party telephone carriers or the third party telephone carriers of their call centers and who submit an affidavit or claim form if necessary to describe the content of the call (the “Class”).” The court denied that request for several reasons.

First, the court held that the class definition was not sufficiently ascertainable because a “significant part” of the definition was not based on objective criteria. Plaintiff defined the class, in part, as individuals who received calls that “were made by, on behalf or, or for the benefit of, or otherwise relate to the Defendant[.]” The court found that it could not readily ascertain whether a call had been “related” to or “for the benefit of” the Defendant. Additionally, the court took issue with the class definition’s criteria, which included calls that were “made using an automatic dialer, or that included a prerecorded message, or that failed to state the Defendant’s name and address.” The court held that this requirement “suggest[ed] uncertainty about the nature of Defendant’s … actual conduct, and thus, uncertainty about the very existence of a viable class of claimants with common claims.”

Second, the court held that the plaintiff had failed to establish numerosity. His motion argued that the class included over 92,000 people. But he failed to state who initiated the calls, the content of the calls, and the identity of the class member. The plaintiff also failed to state whether the caller had used an auto-dialer, had used a prerecorded message, or had failed to state his or her name at the beginning of the sales call. This lack of information amounted to a “conspicuous hole” in the record in support of his motion. As a result, he had failed to show that other people received a call like his, and more evidence was needed to demonstrate that a sufficiently numerous class existed.

Lastly, the court held that the plaintiff had failed to establish typicality or predominance. It explained that, because of the issues outlined above, it could not discern whether the call the plaintiff had received was typical of the class and whether generalized proof would predominate over individualized proof. For these reasons, the court held that he had had not met his burden of proof and denied his motion for class certification. This decision is a helpful example of the evidentiary and procedural challenges plaintiffs face in certifying TCPA cases, particularly those predicated on an alleged absence of consent.

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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