Florida district court denies plaintiff’s motion for class certification because plaintiff’s TCPA wrong-party contact claims could only be determined through individualized inquiries.
This is not the garden variety case of an alleged class of individuals that received calls without consent which is a failsafe class that rarely survives the pleadings stage. Instead, in a whopping 58-page opinion, the Senior District Court Judge for the Middle District of Florida provides a detailed examination of the individual inquiries that prevent class certification in a wrong-number claim under the Telephone Consumer Protection Act.
The facts here are important but familiar to anyone that has ever worked at a collection agency or legally represented one. Defendant Bright House is a cable and internet service provider that operates under a Residential Subscriber Agreement (RSA) with its subscribers. According to the RSA, Bright House’s customers agreed that Bright House and its vendors could call “the phone numbers … suppl[ied] to it for any purpose [via] any method, including an automatic dialing system or an artificial or recorded voice.” The RSA also included an arbitration provision.
One of defendant Bright House’s customers provided his cellular number and subsequently confirmed his number as accurate in 2014 and 2015. But unbeknownst to the defendant, the subscriber’s number was actually reassigned to the plaintiff in 2013. Believing that it had accurate information, Bright House and its contracted collection agency, Advanced TeleSolutions, placed calls to the plaintiff’s cellphone about a service with Bright House. Following calls to plaintiff’s number, and as is customary in the industry, the account was noted with a “bad phone” disposition.
Plaintiff sued Bright House and TeleSolutions in a class action complaint alleging that the defendants attempted to collect a consumer debt by calling plaintiff’s cellphone without his consent, using an automatic telephone dialing system and/or prerecorded voice technology. Plaintiff sought to certify two nationwide classes. In short, plaintiff sought to represent classes of noncustomers who received autodialed or prerecorded messages on cellular telephones for which they were the subscriber after defendants had documented in their records that the cellphone number was the wrong number for the customer defendants were trying to reach.
Plaintiff sailed through proving up his case that he satisfies the “adequately defined classes” requirements for class certification in the Eleventh Circuit; but that momentum came to an abrupt halt when the judge painstakingly picked apart plaintiff’s proposed process to “clearly ascertain” the class – a process that produced a list of over 9,000 potential class members. To plaintiff’s dismay, the district court concluded that evidence from the defense proved that
"the [bad phone] Code assigned to a phone number does not in and of itself mean or establish that Defendants dialed a wrong number, determining whether Defendants dialed a wrong number, determining whether Defendants called a particular phone number after they ‘had already documented the number as a wrong number in their records’ would require individual inquires as to why each phone number was assigned a [bad phone] Code."
The court shrewdly observed that the “difficulty in ascertaining this information is compounded by the fact that the phone numbers at issue were initially provided to Bright House by consenting consumers.” This judge really gets it!
The court’s astute observations stem from a brilliant strategy by defense counsel. Deposition testimony from a defense witness explained that calling a wrong number was not the exclusive reason the bad phone disposition would be assigned to a particular account. Instead, the bad phone disposition was used for many other reasons such as when the “recipient reported that the customer could be more easily reached at a different number”. These details, a look inside the collection world, ultimately led to the court’s decision to deny class certification.
“The court’s opinion underscores the challenges inherent in certifying a class where the problematic nature of the plaintiff’s TCPA claims are wrong-party contacts," explained Justin M. Penn a partner with the law firm Hinshaw and Culbertson, LLP who represented defendant Advanced TeleSolutions. “The judge rightly concluded that plaintiff’s own wrong-party evidence would necessarily require individualized inquiries including which class members were actually subscribers vs. purely a wrong party and those concerning arbitration provisions in the residential subscriber agreements.” explained Penn.
But plaintiff wasn’t quite ready to give up. Plaintiff argued that the class membership could be “double verif[ied]” by affidavits from each class member. The court was not convinced by this argument either pointing out that plaintiff’s proposal for double verification would only “heighten[ ] rather than preclude the case-by-case analysis required as to each [bad phone] Code designation.”
Although the court found that plaintiff failed to establish ascertainability which was fatal to class certification, the court proceeded to discuss the express Rule 23 requirements for class actions and finding for the defendants on some of those elements. Importantly, the court correctly determined that indeed the questions affecting only individual members predominate over questions of law or fact common to class members in contravention of Rule 23(b)(3). Specifically, the district court concluded that in order to determine whether the defendants “called a class member after designating that number as a ‘wrong number’ will require a case-by-case analysis of the facts.” For these reasons, the court found, the issue of liability turns upon highly individualized facts.
“We are thrilled with the court’s decision and hope that it will serve as future support for others in the industry who are trying to defeat class certification under similar circumstances,” Penn said.
The moral of the story is that defendants can defeat class certification in ways other than in the very narrow context of individualized issues of consent. The nature of these wrong-number claims on a nationwide scale are tough to certify because of the unique circumstances.
One final takeaway from this opinion. The judge dedicated a considerable number of pages to a discussion about the fee agreement between plaintiff and his counsel. Although the judge did not ultimately decide whether the retroactive hourly fee provision is unethical, the judge did note that such a provision has been found to violate other state rules of professional conduct.
Click here to read the opinion and order.