In Blair v. CBE Group, Inc. 2015 WL 5086375 (S.D.Cal. 2015), Judge Anello denied certification of a TCPA class defined as “Skip Trace Class: All persons within the United States to whom CBE placed a call to a cellular telephone at a number that CBE did not obtain either prior express consent from the debtor, and that call was made using the LiveVox or Noble dialer or called featuring an artificial or prerecorded voice.”. The facts were as follows:
Plaintiffs, on behalf of themselves and all others similarly situated, bring this putative class action alleging claims for (1) negligent violations of the TCPA and (2) knowing and/or willful violations of the TCPA pursuant to 47 U.S.C. § 227, et. seq. Doc. No. 67. Plaintiffs allege that they received unsolicited calls on their respective cellular telephones from Defendant, and that Defendant used an automatic telephone dialing system (“ATDS”) or prerecorded voice to place the calls. Plaintiffs further allege that the calls were not for emergency purposes, that they did not provide prior express consent to receive the calls, and that they continued to receive the calls even after instructing Defendant to stop. According to Plaintiffs, Defendant has made in excess of 500,000,000 debt collection calls to consumers throughout the country during the putative class period. Defendant is a business processing outsourcing organization that offers contact center solutions in the areas of first-party debt collections and third-party debt recoveries, in addition to various other services. Defendant provides debt collection services to various industries, including utilities, satellite communications providers, cable television providers, and student loans. Defendant is headquartered in Cedar Falls, Iowa, and employs 1,500 people throughout its seven global locations. Defendant maintains that it is not liable for TCPA violations because its three types of dialing systems—Manual Clicker Application, Noble, and LiveVox—do not meet the definition of an ATDS, and it obtains prior express consent, including from all three Plaintiffs, to make such calls.
Judge Anello commented on the impact of “prior express consent” as affecting parties’ burden of proof and certifiability of a TCPA class action under FRCP 23.
“Considering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 131 S.Ct. 2179, 2184 (2011). Here, Plaintiffs seek certification of three proposed classes for TCPA violations. To establish liability under the TCPA, the plaintiff must show that “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir.2012) (citing 47 U.S.C. § 227(b)(1)). “In TCPA actions, the predominance inquiry is satisfied only when Plaintiffs ‘advance a viable theory employing generalized proof to establish liability with respect to the class involved.’ “ Connelly, 294 F.R.D. at 577 (quoting Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 326 (5th Cir.2008)). Further, the predominance inquiry in TCPA actions often turns on whether individualized inquiries-rather than generalized proof applicable to the entire class-are required to demonstrate an individual class member’s prior express consent. See, e.g., Stern v. DoCircle, Inc ., No. 12cv2005 AG JPRX, 2014 WL 486262, at *8 (C.D.Cal. Jan. 29, 2014). “Although TCPA cases are not ‘per se’ unsuitable for class resolution, class certification is warranted only when the ‘unique facts’ of a particular case indicate that individual adjudication of the pivotal element of prior express consent is unnecessary.” Connelly, 294 F.R.D. at 577 (quoting Gene & Gene, 541 F.3d at 326) (quotation marks omitted). Thus, “for purposes of class certification, [the party seeking certification] must prove that consent, or the lack thereof, can be resolved on evidence and theories applicable to the entire class.” Kristensen, 12 F.Supp.3d at 1306–07 (internal citation and quotation omitted). However, courts should not simply accept a party’s argument that consent requires individualized inquiries without evidence demonstrating consent is, in fact, an individualized issue. See, e.g., Meyer, 707 F.3d at 1042; Stern, 2014 WL 486262, at *3 (“Based on the facts before it now, it does not appear that the Court will have to make individualized determinations of consent. While such determinations would be necessary if the parties presented individualized evidence of consent, they haven’t done so.”). As another district court recently explained: “The Ninth Circuit has held that in the absence of any evidence of consent by the defendant, consent is a common issue with a common answer. This does not necessarily mean that defendants have an affirmative burden to produce evidence of consent to prevail at trial, however. It simply means that courts should ignore a defendant’s argument that proving consent necessitates individualized inquiries in the absence of any evidence that express consent was actually given. It also means that courts should afford greater weight to a plaintiff’s theory of class-wide proof of lack-of-consent when that theory is entirely unrebutted by the precise type of evidence which could do it greatest harm—evidence of express consent.” Kristensen, 12 F.Supp.3d at 1307 (footnote omitted).
Judge Anello found that, under the above standards, the class could not be certified.
Relying on Kristensen, Plaintiffs assert that Defendant has not provided any evidence of individual consent, and its failure to do so permits a finding that consent is a common issue with a common, classwide answer, which predominates over any individual issues. Specifically, Plaintiffs highlight Defendant’s practice of documenting express consent—where an agent receives express consent, he or she is supposed to record both the phone number and the consent in the account notes within Defendant’s internal system. According to Plaintiffs, because Defendant cannot locate any record in the account notes that the three Plaintiffs gave consent to an agent of Defendant, there is no evidence that Plaintiffs provided consent to be called by Defendant. However, this case is distinguishable from Kristensen and Stern precisely because Defendant has, in fact, provided evidence regarding consent by all three Plaintiffs that demonstrates the need for individualized inquiries on the issue of consent. As Plaintiffs acknowledge, one way for Defendant to demonstrate prior express consent is to show the debtor provided his or her cell phone number to the creditor on an application for services resulting in the debt owed. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, 23 F.C.C.R. 559, 564–565 (2008).6 With respect to Plaintiff Blair, Defendant has provided a declaration on behalf the underlying creditor, DirecTV, with accompanying documents, including the STMS Billing Ledger, Order Management System (“OMS”), and Call Log for Plaintiff Blair’s DirecTV account. See Walters Decl., ¶¶ 13–18. These documents show that Plaintiff Blair signed up for DirecTV programming on September 16, 2011, and provided a different phone number ending in 1268 when she opened her account. However, there was an inbound telephone call from Ms. Blair to DirecTV on December 20, 2011, the date her account was reinstated, resulting in the following note on the account 9:55 a.m.: “CCI TO UPDATE THE PHONE # .” According to DirecTV, this note suggests that Ms. Blair provided updated telephone number as her primary point of contact, and this number was subsequently included in the transfer file provided to Defendant for collections. See Walters Decl., ¶¶ 22–27. With respect to Plaintiff Deal, Defendant has also provided a declaration on behalf of the underlying creditor, Verizon, indicating that Plaintiff Deal provided her phone number ending in 0063 as her “can be reached at telephone number” to her Verizon representative on the date she placed her initial order for service. See Friedman Decl., ¶¶ 13–17. Verizon subsequently placed Plaintiff Deal’s account for collections, and the transfer file included the phone number ending in 0063. Finally, Plaintiff Collins testified in her deposition that her phone number was added to her student loan account when she contacted them about the loan. See Collins Depo. at 21.7 The Court emphasizes that at the certification stage, the ultimate merits of the issue of consent—i.e. whether Plaintiffs Blair, Deal, and Collins did or did not provide consent to be called by Defendant—is not currently before the Court. Instead, at this stage of the litigation, the Court must determine whether the issue of consent is a common issue with a common answer that predominates over any individual issues. Courts have recognized that similar TCPA actions involving debt collections “require extensive individual fact inquiries into whether each individual gave ‘express consent’ by providing their wireless number to the creditor during the transaction that resulted in the debt owed.” Versteeg, 271 F.R.D. at 674. The evidence offered by Defendant underscores the need for individualized inquiries to determine whether a particular class member provided express consent to receive phone calls from Defendant. As exemplified above, the underlying debts of the three Plaintiffs arose in varying contexts and in connection with different underlying creditors. Further, the interaction between Plaintiffs and their respective creditors, and the circumstances in which Plaintiffs Blair, Deal, and Collins may or may not have provided consent, also varies significantly. Accordingly, determining whether a particular class member provided his or her wireless phone number to an underlying creditor requires an individualized inquiry into the particular circumstances in which the debt arose, and such individualized inquiries predominate over any issue common to the class. See Gannon v. Network Tel. Servs., Inc., No. 12cv9777–RGK PJWX, 2013 WL 2450199, at *3 (C.D. Cal. June 5, 2013); Versteeg v. Bennett, Deloney & Noyes, P.C., 271 F .R.D. 668, 674 (D.Wyo.2011) (“This will require an individual review of loan documents and other files related to the underlying debt obligation. These questions require individual inquiries that would predominate over the class action.”); Hicks v. Client Servs., Inc ., No. 07cv61822, 2008 WL 5479111, at *8 (S.D.Fla. Dec. 11, 2008) (“[U]ltimately consent is an issue that would have to be determined on an individual basis at trial.”). . . . . In their reply, Plaintiffs appear to dispute the merits of the consent issue, arguing neither Plaintiffs Blair, Deal, nor Collins ever consented to receive calls from Defendant and citing evidence that contradicts Defendant’s position. The Court reiterates that at the certification stage, it expresses no opinions on the ultimate merits of the consent issue. However, Plaintiffs’ arguments, including the evidence cited in support of their position, illustrate the need for “mini-trials” into whether each class member provided his or her phone number to the underlying creditor. See Gene And Gene, 541 F.3d at 328–29 (“In short, there is no class-wide proof available to decide consent and only mini-trials can determine this issue.”). For example, although Plaintiffs maintain that Plaintiff Blair did not call DirecTV on December 20, 2011, they acknowledge that on the same day, she sent an email providing her 6125 cell phone number to the company that assisted in signing her up for DirecTV. According to Plaintiffs, a representative from this company—and not Plaintiff Blair herself—likely provided DirecTV with Ms. Blair’s 6125 cell phone number, though Plaintiffs argue it lacked the apparent authority to do so. This entire scenario illustrates the extensive individual factual inquiries required to determine whether a particular class member provided express consent, and such inquiries would unquestionably predominate over any common issues. Because individualized inquiries would predominate, the Court finds class certification of Plaintiffs’ TCPA claims would be improper under Federal Rule of Civil Procedure 23(b)(3).