In Sliwa v. Bright House Networks, No. 2:16-cv-235-FtM-29MRM, 2019 U.S. Dist. LEXIS 167805, at *56-63 (M.D. Fla. Sep. 27, 2019), the District Court denied class certification.
Plaintiff identifies the following common questions of law or fact which he asserts will predominate over any individualized issues: whether (1) an automatic telephone dialing system or prerecorded voice technology was used; (2) Defendants’ actions were willful; (3) Defendants had prior express consent; (4) Defendants called the class members after Defendants had designated their phone numbers as a wrong number; and (5) Defendants willfully violated the TCPA. (Doc. #157, pp. 24-25.) Defendants argue that individual issues will predominate, including the issue of consent. (Doc. #164, pp. 22-32.) Specifically, Defendants argue individual issues will predominate because (1) consent can only be determined on an individual basis, as all of the phone numbers in Group A were provided to Bright House by Bright House customers; (2) non-customer users of Bright House’s services may be bound by the arbitration provision in Bright House’s RSAs; (3) as to the PRV class, individualized inquiries will be required to determine if a PRV played; (4) individualized inquiries will be required to determine whether each class member has standing; and (5) individualized inquiries will be required to apportion damages. (Doc. #164, pp. 22-32.) Plaintiff, however, asserts that individual issues will not predominate because (1) “Plaintiff narrowly tailored the class to exclude persons that may have consented; (2) the class only includes members who were called after their number was assigned a BP code, which “establish[es] that [Defendants] lacked consent to call these telephone numbers”; (3) the arbitration provision in Bright House’s RSAs only apply to account holders; (4) as to the PRV class, Defendants admit their records establish when a PRV should have played; (5) it is well established in the Eleventh Circuit that “a subscriber to a telephone number has standing in a TCPA claim based on the mere physical connection of a telephone call to his telephone number, which invades the subscriber’s property interest by occupying the telephone line”; and (5) individualized inquires will not be required in determining damages because “the class is limited to subscribers only, so [damages] is not an issue at all.” (Doc. #174, pp. 7-12.) Here, the Court agrees with Defendants that individual issues will predominate in this case. While the overarching legal claims are the same for each putative plaintiff (e.g. whether Defendants called the class members in violation of the TCPA) resolution of these common legal claims will “break down into an unmanageable variety of individual legal and factual issues.” Babineau, 576 F.3d at 1191. For instance, as to the issue of consent, the Court would be required to make individual determinations as to whether each class member consented to receive calls from Defendants. The fact that the classes are limited to non-customers whose phone numbers were assigned a BP code does not prevent these individualized inquiries, as Defendants’ evidence demonstrates that a non-customer may consent to receive calls on behalf of a customer. Plaintiff, however, contends that such individualized issues of consent are unlikely to predominate because “there is no reason to believe any significant percentage” of non-customers consented to receive calls on behalf of a Bright House customer. (Doc. #174, p. 8.) Plaintiff so reasons because, in order to establish such consent by intermediary, “Defendants would have to prove that the customer actually obtained the class members’ consent to have Defendants call about the customer’s debt, and that the customer then conveyed that consent to Defendants.” (Id.) While Plaintiff has accurately outlined the contours of the doctrine of intermediary consent, and although it appears Defendants have submitted no evidence indicating that a non-subscriber consented to receive debt collection calls on a subscriber’s behalf under this doctrine, a party may also establish consent pursuant to the TCPA under agency law principles. SeeOsorio, 746 F.3d at 1253 (noting that the plaintiff’s consent to receive debt-collection phone calls on behalf of his housemate under the TCPA could be established where the plaintiff and his housemate shared an agency relationship). Given that the phone numbers at issue in this case were provided to Bright House by Bright House customers (Doc. #165-1, p. 4), and because Bright House provided services to households (often with multiple service users within a household), the Court finds that whether non-customers consented to receive such calls under agency law principles can only be resolved on a case-by-case basis. Indeed, Defendants have submitted evidence demonstrating that Bright House customers often prefer to be called at a non-customer’s phone (such as a spouse or family member’s phone). (Doc. #165-1, p. 4.) Relatedly, determining whether Defendants called a class member after designating that number as a “wrong number” will require a case-by-case analysis of the facts. As discussed in the commonality analysis supra, a BP code does not necessarily establish that Defendants called a wrong number, and resolution of this issue can therefore only be resolved through individualized inquiries as to why each call was assigned a BP Code.21 Indeed, Bright House’s affidavit reflects that it received payments on past-due accounts associated with cell phone numbers in Group A “shortly after a bad phone code appeared in ATS’s call logs” and that customers “had other (including new) accounts with the same phone number that were active after the presence of a bad phone code . . . .” (Doc. #165-1, p. 8)(emphasis in original.) Determining whether these BP Codes indicated a wrong number was called can only be resolved on an individual basis, and Defendants’ imprecise record keeping does [*61] not preclude the required individualized inquiries. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356 (3d Cir. 2013)(“[T]he nature or thoroughness of a defendant’s recordkeeping does not alter the plaintiff’s burden to fulfill Rule 23’s requirements.”). Moreover, Bright House’s RSA contains an arbitration provision which provides that Bright House may compel arbitration for any dispute “regarding any aspect of [the customer’s] 21 Similarly, as to the PRV class, determining whether a PRV played would require an individualized inquiry as to each PRV class member. The Court is unpersuaded by Plaintiff’s assertion that this issue is unlikely to predominate because Defendants’ records demonstrate when a PRV “should have played” on a call. (Doc. #174, p. 12.) While these records may be probative evidence as to this issue, whether a PRV “should have played” does not establish that it did in fact play. See e.g. Ybarra v. DishNetwork, L.L.C., 807 F.3d 635, 640 (5th Cir. 2015)(“To be liable under the ‘artificial or prerecorded voice’ section of the TCPA . . . [the] artificial or prerecorded voice must actually play.”). The RSA further provides that the use of Bright House’s services “by any person other than [the customer] is also subject to the terms of [the RSA].”22 (Id.) Although Plaintiff’s proposed classes are limited to non-customers, these non-customers may ultimately be bound by the arbitration provision within the RSA because Bright House provided services to households with non-customer users of Bright House’s services. See Raffa Assocs., Inc. v. Boca Raton Resort & Club, 616 So. 2d 1096, 1097 (Fla. 4th DCA 1993)(noting that under Florida law, “ordinarily a third-party beneficiary of a contract is bound by an arbitration clause in that contract” (citations omitted)); Akpele v. Pac. Life Ins. Co., 646 F. App’x 908, 912 (11th Cir. 2016)(“[S]tate contract law informs whether arbitration agreements are binding on third-party beneficiaries.”). The Court thus finds that resolving whether the arbitration clause in the RSA applies to non-customer users of Bright House’s services will require significant individualized inquiries. From 2011 through 2015, Bright House used different versions of its RSA. However, all of the versions used during this time period appear to contain this same provision, as well as the same arbitration clause. (Doc. #165-1, pp. 13, 35, 59, 72.) The Court, however, finds no merit in Defendants’ assertion that the issue of damages would predominate because “it appears that both a subscriber and customary user of the same number would be members of the classes” and the Court would thus have to determine how to apportion damages between the two (Doc. #164, p. 31). See Osorio, 746 F.3d at 1251-52(The “called party” under the For the foregoing reasons, “the issue of liability . . . turn[s] upon highly individualized facts.” Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009)(citations and quotation omitted). The Court thus finds that Plaintiff has failed to satisfy Rule 23(b)(3)’s predominance requirement.