In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013), Judge Mola refused to reconsider his class certification of a TCPA class.
Turning to a few of the matters raised at oral argument, Defendants complain that the TCPA class definition is problematic because it does not identify any parameters for determining when an individual is a “Florida resident.” Plaintiff suggests that the definition be modified to cover all persons who provided a Florida address at the time of their hospital visit. The Court finds that suggestion reasonable and will modify the TCPA class definition accordingly. ¶ Defendants’ next contention is that the issue of consent continues to pose a hurdle to class certification. This Court disagrees. As Plaintiff points out, the Defendants have never argued that express consent to be called was given on a case-by-case, individualized basis to the hospital, Inphynet, or the billing vendor. Nor have they ever offered any evidence pertaining to any putative class member suggesting that such individualized consent might be so pervasive as to pre-dominate over issues common to the class. Instead, their entire argument has been that consent was given merely because putative class members tendered their telephone numbers to the hospital at the time of their medical treatment. As the parties are aware, this argument, based on an FCC ruling, was recently considered and rejected by the Court on summary judgment in a similar case, Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 1283885 (S.D.Fla. Mar.27, 2013). While this is not the place to adjudicate the merits of Defendants’ consent argument, the point is that it does not defeat class certification. The uniform consent argument, based on the hospital admissions paperwork, is subject to classwide resolution, as all putative class members filled out the same paperwork. ¶ The mere possibility that some putative class members may have given express consent on an individualized basis is speculative and not supported on the present record. As stated in the class certification order, this Court is well aware of its continuing obligation to monitor class actions and to decertify if necessary. See Shin v. Cobb Cnty. Bd. of Educ., 248 F.3d 1061, 1064 (11th Cir.2001) (“the district court retains the ability, and perhaps even a duty, to alter or amend a certification decision,” as circumstances change); see also Fed.R.Civ.P. 23(c). Should the circumstances change and should the Defendants have more substantial arguments or evidence in their favor suggesting that individualized consent to the hospital, Inphynet, or the billing vendor is pervasive, then they are welcome to move for decertification at a later time. Absent such evidence, the mere possibility that someone in the class may have specifically authorized one of those entities to call them is insufficient to create a predominating individualized issue rendering class treatment inferior.
Judge Mola recognized that class certification of a willful violation of a TCPA claim would be difficult to certify. So, he simply allowed Plaintiff to withdraw their claim for a willful violation . . .
The Defendants’ next argument is that determining willful and knowing damages under the TCPA will require individualized inquiries that defeat certification. In response at oral argument, Plaintiff offered to withdraw his request for willful and knowing damages and seek only statutory damages on behalf of the class. The Defendants replied that such a concession makes the Plaintiff an inadequate class representative. This argument is mistaken. As numerous courts have held, the named plaintiff is not rendered inadequate just because he elects to pursue some remedies, but not others, so long as putative class members are given adequate notice and opportunity to opt out. See, e.g., Murray v. GMAC Mortg. Corp., 434 F.3d 948, 953 (7th Cir.2006); Chakejian v. Equifax Info. Servs. LLC, 256 F.R.D. 492, 499–500 (E.D.Pa.2009); Andrade v. JP Morgan Chase Bank, N.A., 2009 WL 2899874, at *3 (E.D.N.Y. Sept.4, 2009); Summerfield v. Equifax Info. Servs. LLC, 264 F.R.D. 133, 141 (D.N.J.2009); In re Farmers Ins. Co., FCRA Litig., 2006 WL 1042450, at *7 (W.D.Okla. Apr.13, 2006); Braxton v. Farmer’s Ins. Group, 209 F.R.D. 654, 660 (N.D.Ala.2002). Consistent with this line of authority, the Court finds that the opt-out procedure is sufficient to safeguard the interests of any class members who may wish to pursue willful and knowing damages on their own. The Court will require that the class notice clearly and expressly inform putative class members that the Plaintiff will not be seeking willful and knowing damages on their behalf and that they have the right to opt out and pursue such damages on their own, if they so wish. ¶ The Court notes that, in any event, it would be reluctant to award willful and knowing damages in this case, even if Plaintiff chose to pursue them. The statute provides that “the court may, in its discretion,” award up to treble damages if it “finds that the defendant willfully or knowingly violated” the TCPA. See 47 U.S.C. § 227(b)(3)(B). Even supposing that the Defendants violated the statute, the Court would not be inclined to exercise its discretion to award willful and knowing damages where, as here, the Defendants relied upon an FCC ruling, embraced by other courts, regarding the issue of uniform consent. The Plaintiff’s choice to abandon damages that the class is not likely to win does not render him an inadequate representative. At bottom, the decision to forego willful and knowing damages is a strategy decision that this Court should not second guess. See Chakejian, 256 F.R.D. at 500 (where “there are inherent difficulties inherent in tracing and proving” the damages plaintiff seeks to abandon, it is “not the court’s place to second guess” his litigation strategy); see also In re Farmers Ins. Co., FCRA Litig., 2006 WL 1042450, at *7 (“There is no showing in the record that the election of statutory damages as a remedy by the named plaintiffs would not benefit the majority, if not all, of the members of the class.”).