We previously reported on Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Judge Sammartino held that the absence of consent is not a pleading requirement imposed on a TCPA plaintiff.  (http://www.calautofinance.com/?p=2894)  Judge Sammartino also held that consent must be “clearly and unmistakenly” given.  What seemed like a win for the Plaintiff ultimately turned into a high burden for the Plaintiff to overcome on class certification.  In Connelly v. Hilton Grand Vacations Co., LLC, — F.R.D. —-, 2013 WL 5835414 (S.D.Cal. 2013), Judge Sammartino refused to certify a TCPA class of 6 million cell phone subscribers who received approximately 37 million calls from Hilton due to individualized questions relating to how Hilton acquired the cell phone numbers.  Hill placed the calls to individuals who had voluntarily provided their contact information to Hilton when (1) signing up for Hilton’s HHonors loyalty rewards program, or (2) reserving, or checking in to, a room at a Hilton hotel. Hilton opposed the motion arguing that variances in the manner in which class members provided their cell phone number to Hilton made it impossible to discern which class members had, in fact, consented to receive the calls at issue and which had not. Hence, Hilton argued, the class is unascertainable and individualized inquiries predominate over common issues. Judge Sammartino agreed with Hilton, and declined to certify the class.  Judge Sammartino focused on the issue of predominance, and, under the rule of Gene & Gene, Judge Sammartino rejected Plaintiff’s effort to certify the class due to wide number of circumstances under which class members provided their cell phone numbers to Hilton. Judge Sammartino explained:

It is likely that each individual received a different amount of information regarding how his cell phone number would be used and there is at least a non-trivial possibility that some class members expressed consent in a manner that was colored by these circumstances. (See id.) This diversity suggests that the issue of consent should be evaluated individually, rather than on a classwide basis. ¶  . . . HGV obtained the class members’ cell phone numbers “from a variety of sources over a period of time.” Gene & Gene, 541 F.3d at 329. HGV’s position is not only that the class members consented “ipso facto” by providing a cell phone number; rather, HGV contends that there was consent under the circumstances of “the individualized experience that each guest shared with Hilton.” (Oct. 4, 2013 Hearing Tr. 24, ECF No. 64). HGV notes that the different ways in which it obtained phone numbers from the class members suggest that its “call list is not a list of homogeneously unconsenting recipients,” Vigus v. So. Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 237 (S.D.Ill.2011), and that express consent should be evaluated on an individualized basis. Thus, the individualized issues in this suit are at least as important as the common issues and the predominance requirement is not satisfied. See, e.g., Gannon v. Network Tel. Servs., Inc., No. CV 1209777–RGK (PJWx), 2013 WL 2450199, at *3 (C.D.Cal. Jun.5, 2013) (holding predominance requirement not satisfied where issue of consent required individual inquiry regarding class members’ interactions with defendant).

Judge Sammartino also rejected Plaintiff’s Rule 23(b)(2) certification effort finding a lack of cohesiveness:

In this suit, each plaintiff is independently entitled to statutory damages under the TCPA of $500 to $1500 per unlawful call. See 47 U.S.C. § 227(b)(3)(B). Thus, Plaintiffs’ TCPA claims are ineligible for Rule 23(b)(2) certification, regardless of Plaintiffs’ parallel request for injunctive relief. See Dukes, 131 S.Ct. at 2557 (holding that certification is improper for claims for “individualized relief,” including claims that entail an “individualized award of monetary damages.”).

Thank you to Eric Troutman at ejt@severson.com for authoring this post.  Please contact Mr. Troutman for information about the TCPA and TCPA class certification issues, and look for his new practice guide on the TCPA in “Debt Collection” (CEB Publications 2013) due for publication this month.