In Smith v. Leif Johnson Ford, No. ED109494, 2021 Mo. App. LEXIS 780, at *2-5 (Ct. App. Aug. 17, 2021), the Court of Appeals affirmed certification of a “ringless voicemail” class.
Smith, a Missouri resident, filed a putative class action against Ford, a Texas car dealership doing business nationwide and in Missouri. Smith alleged Ford violated the TCPA by sending ringless voicemails promoting Ford’s automotive sales and service business without prior express written consent to the cellphones of Smith and the class members in May 2019. Ford’s general manager, Anthony Hewitt (“Hewitt”), entered into a contract with Direct Marketing Advantage (“DMA”) to market its business to customers and potential customers in Texas in May 2019. Ford maintained Hewitt only authorized a direct mail marketing campaign within the State of Texas and did not discuss or request other marketing tools with DMA, including ringless voicemails. Smith produced evidence in the record showing that Hewitt authorized DMA to provide marketing services to Ford through ringless voicemails, e-mails, and mailings, including a contract showing DMA would make 8,408 ringless voicemails. DMA engaged another company, “My Lead Guys,” to place the ringless voicemails. Smith and other class members received the ringless voicemail messages. Smith produced a call-log spreadsheet listing the phone numbers that received the ringless voicemails (the “Manifest”). Fred Trudeau, employed as President of Ford, stated by affidavit that the Manifest was a business record of Ford’s. The circuit court determined Trudeau confirmed that ringless voicemails were delivered to the phone numbers on the Manifest in May 2019. Ford denied creating the Manifest and denied knowing who created the Manifest. The Manifest contains 3,769 entries of individuals with associated phone numbers and addresses. The entries list Texas addresses and reflect various area codes. Two phone numbers in the Manifest have area code (314) phone numbers, one of which belonged to Smith. Ford moved for summary judgment, arguing it was not liable because it never authorized, requested, agreed to, or ratified DMA to engage in a ringless voicemail campaign on its behalf. Based on the evidence in the summary judgment record, the circuit court denied Ford’s motion for summary judgment. Smith then moved for class certification. Following briefing and oral argument in which the circuit court considered the pleadings and evidence from affidavits and deposition testimony as well as the summary judgment record, the circuit court entered its order granting class certification in February 2021. The circuit court addressed the criteria in Rule 52.08(a) and made detailed findings that the class satisfied the requirements for numerosity, commonality, typicality, and adequacy. Relevant to this appeal, the circuit court found the class satisfied the typicality requirement because Smith alleged the owners of the 3,769 cellphone numbers listed on the Manifest received ringless voicemails without prior express written consent in violation of the TCPA. Regarding the issue of predominance, the circuit court likewise found the proposed class met the requirements of Rule 52.08(b)(3) in that the class had a TCPA claim stemming from Ford’s alleged actions in causing ringless voicemails to be delivered to the 3,769 phone numbers on the Manifest without prior express written consent. In finding that a class action would be the superior method for fairly and efficiently adjudicating the controversy under Rule 52.08(b)(3), the circuit court noted that Ford raised no objection to adjudicating the matter in the circuit court of St. Louis County. The [*5] circuit court granted Smith’s motion to certify the following class: “Those individuals who owned at the relevant time the cellphone numbers listed on the Manifest of those numbers to which prerecorded [ringless voicemails] were placed in May, 2019, promoting [Ford’s] automotive sales and service business.”
The Court of Appeals explained:
We agree with the circuit court that the evidence of cellphone ownership, lack of consent, and receipt of the ringless voicemails during the relevant timeframe presents an overriding and compelling common question of recovery under the TCPA, which predominates over individual issues, such as where the cellphone owner resides or under what name the phone number [*20] is listed on the Manifest. See id. at 177 (“[T]he fact that some issues may require individualized fact-finding does not prevent the satisfaction of the common-question-predominance question.”); see also Karen S. Little, L.L.C. v. Drury Inns, Inc., 306 S.W.3d 577, 582 (Mo. App. E.D. 2010) (per curiam) (rejecting the argument in a TCPA case involving unsolicited fax advertisements that predominance was not satisfied because individualized inquiries would need to be made to determine whether each of the 8,000 class members had an established business relationship with the defendant where the predominating issue was whether the defendant’s conduct violated the TCPA). Although Ford suggests that it may have varying defenses to the claims of different plaintiffs depending on the individuals associated with the phone numbers on the Manifest at the relevant timeframe, the general rule is that “the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” See Vincent, 570 S.W.3d at 48 n.2 (quoting Bridging Cmtys. Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016)). Further, Ford’s reliance on a case out of the United States District Court for the Southern District of Illinois involving a casino’s prerecorded calls to its customer loyalty program members is misplaced and provides no guidance in this matter. In that case, the predominant issue was not the defendant’s common course of conduct in making the telephone calls in violation of the TCPA, but whether the specific calls were made to statutorily-protected individuals. See Vigus v. Southern Illinois Riverboat/Casino Cruises, Inc. 274 F.R.D. 229, 237-38 (S.D. Ill. 2011). Vigus involved individualized consideration of the critical element of consent, which was called into question by the proposed class members’ membership in a customer loyalty program that arguably provided consent for the prerecorded calls. See id. Focusing on that and other unique facts pertaining to the plaintiff’s deficient pleadings, Vigus distinguished the matter before it from cases in which a defendant contracted with a marketing vendor to cold-call residential numbers, as “[i]n such a case, there is a likelihood that a great majority of the telephone call recipients would, like [the plaintiff], have causes of action under the TCPA because there would be little basis to believe they had given their express consent to be called on their residential telephone lines.” Id. at 234-35. The record before us makes clear that the purpose of the Manifest, a list of 3,769 proposed plaintiffs, was connected to a contract with DMG to make ringless voicemails [*22] to cellphones for marketing purposes, with no evidence in the record suggesting prior consent to contact by any person whose phone number appeared on the Manifest. The predominant common question in this litigation is whether Ford’s conduct led to the placement of ringless voicemails to those phone numbers listed on the Manifest in violation of the TCPA. The issues identified by Ford that may later prove some variance between the individuals associated with the phone numbers on the Manifest during May 2019 may be relevant to the ability of some individuals to recover, but does not so undermine the predominant common question of this litigation so as to preclude class certification. See Dale, 204 S.W.3d at 177 (citing Craft, 190 S.W.3d at 377) (“In determining whether a class action is appropriate, the question is not whether the plaintiff can make a submissible case or prevail at trial, but whether the requirements for class certification have been satisfied.”). Ford’s speculation as to potential variations on some individual facts and party defenses does not meet its burden of proving circuit court error, because the predominant common issue presented in this litigation is the central legal question of whether the owners of the phone numbers on the Manifest during the relevant timeframe consented to receive the ringless voicemails. See Vincent, 570 S.W.3d at 47. Accordingly, we are not persuaded the circuit court’s certification of the class lacked careful consideration, went against the logic of the circumstances, or was so arbitrary and unreasonable as to constitute an abuse of its discretion. See id. at 46. Point Two is denied.