In an order published last week United States District Court Judge Michael M. Anello from the Southern District of California denied Plaintiffs motion for class action certification in the case of Linda Blair, Diane Deal, and Shannon Collins v. The CBE Group, Inc. (CBE) (13cv134-MMA).

On January 16, 2013, Plaintiffs, on behalf of themselves and all others similarly situated, filed this putative class action alleging claims for (1) negligent violations of the Telephone Consumer Protection Act (TCPA) and (2) knowing and/or willful violations of the TCPA.

Plaintiffs alleged:

1) That they received unsolicited calls on their respective cellular telephones from Defendant

2) That Defendant used an automatic telephone dialing system (“ATDS”) or prerecorded voice to place the calls

3) That the calls were not for emergency purposes

4) That they did not provide prior express consent to receive the calls

5) That they continued to receive the calls even after instructing Defendant to stop

Defendant responded to the suit claiming that it is not liable for TCPA violations because the three types of dialing systems used by CBE —ManualClicker Application, Noble, and LiveVox—do not meet the definition of an ATDS, and, even if the dialing systems used were deemed to meet the definition of an ATDS, it had prior express consent, including from all three Plaintiffs, to make such calls.

After extensive discovery, the Plaintiffs filed a motion for class action certification seeking to certify the following 3 separate classes:

  • Autodialer Class
  • Prerecorded Voice Class
  • Skip Trace Class

Federal Rule of Civil Procedure 23 governs the certification of a class. Parties seeking class certification bear the burden of demonstrating that they have met each of four requirements of Federal Rule of Civil Procedure 23(a) and at least one of the requirements of Rule 23(b).

CBE opposed the class certification on numerous grounds, including that Plaintiffs improperly raised these Class definitions for the first time in their certification motion, that all three definitions are “fail-safe” class definitions, that Plaintiffs fail to satisfy any of the Rule 23(a) requirements, and finally, that Plaintiffs fail to show common questions predominate under Rule 23(b)(3).

Under Rule 23(b)(3), a class may be certified if the court ‘finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” (Emphasis added.)

The Court found that Rule 23(b)(3)’s predominance inquiry was dispositive in this matter, and therefore focused its analysis on whether Plaintiffs had demonstrated common issues predominated under Rule 23(b)(3).

The underlying debts of the three Plaintiffs arose in varying contexts and in connection with different underlying creditors. Further, the historical interaction between Plaintiffs and their respective creditors, and the circumstances in which Plaintiff Blair may or may not have provided consent, also varied significantly.

The court found that determining whether a particular class member provided his or her wireless phone number to an underlying creditor required an individualized inquiry into the particular circumstances in which the debt arose, and such individualized inquiries predominated over any issue common to the class.

Ultimately the court found that consent was an issue that would have to be determined on an individual basis at trial. In fact, the court noted that Plaintiffs’ own arguments, including the evidence cited in support of their position, illustrated the need for “mini-trials” into whether each class member provided his or her phone number to the underlying creditor.

Because individualized inquiries regarding consent would predominate, the Court found that class certification of Plaintiffs’ TCPA claims would be improper under Federal Rule of Civil Procedure 23(b)(3).

insideARM Perspective

Kudos to CBE group for vigorously defending the case and defeating the attempted class certification. It is positive for the industry to see that at least one Judge recognizes the unique nature of the inquiry regarding “prior express consent.”

The individual cases still exist for CBE group, but at least the potential class action exposure has been removed.


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