In O’Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case.  Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated.

However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a course of action has been labeled “overshadowing” in the FDCPA. § 1692g(b). O’Connor’s proposed class is for debtors who were subjected to phone calls by Diversified which amounted to overshadowing. The inquiry of which debtors were subjected to such alleged tactics is an individual inquiry. This is not a case where each debtor was sent the same written communication which violated the FDCPA. To determine whether Diversified’s phone calls to each plaintiff establishes an overshadowing claim will demand an individual inquiry into the communications made to each plaintiff. As a result, a certification of a class action claim under the FDCPA is not appropriate.

Judge Sippel found similar predominance problems with Plaintiffs’ TCPA class action:

Stated more simply, the proposed TCPA class is for any debtor of U.S. Cellular who was called on their cell phone by Diversified using an ATDS without the debtor’s consent. Whether the debtor’s consented to be called on their cell phone is a pivotal issue in determining whether to certify this class. The debt forming the basis of this class is for cellular service provided by U.S. Cellular. The evidence at the class certification hearing is that Diversified obtained the proposed class cell phone numbers from U.S. Cellular. These cell phone numbers were either assigned to the to the debtors by U.S. Cellular when they obtained cellular service or they were cell phone numbers pro-vided by the debtor to U.S. Cellular during the application process. (O’Connor’s counsel stated at the class certification hearing that he did not know how U.S. Cellular obtained the cell number on which Diversified called O’Connor.) ¶  The Federal Communications Commission has issued two relevant orders regarding consent to call a cell phone. On October 16, 1992, the FCC issued an order which stated that cellular carriers do not need consent from “their cellular subscribers prior to initiating autodialer … calls for which the cellular sub-scriber is not charged.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8775. On January 4, 2008, the FCC issued an order stating that if a party provides a cell phone number to a creditor, for example, as part of a credit application, they are deemed to have provided express consent to be auto-dialed by the creditor at that cell phone number. In the matter of Rules and Regulations Implementing the Telephone Consumer Protection Ast of 1991, 23 F.C.C.R. 559, 564.FN7 The FFC order also states that calls “placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” Id. at 565.  ¶  The FCC has established that cellular carriers need not get permission to autodial their subscribers where no charge is incurred and that calls by a debt collector are treated as if the creditor itself placed the call. Diversified argues that in collecting the debt from these cellular customers, it stands in the shoes of U.S. Cellular and is entitled to the shelter that the FCC has provided to cellular companies. I agree with Diversified’s position. I find that a debt collector for a cellular company may invoke the shelter given to the cellular company for calls to its subscribers. Because the shelter only applies where the cellular subscriber has not incurred a charge for the call, an individual inquiry will be necessary to determine if a charge was incurred. Such an individual inquiry makes the certification of a TCPA class inappropriate.  ¶   Alternatively, if a debtor provided a cell number to U.S. Cellular to contact (separate from the one issued by U.S. Cellular) then they consented to be called on that number. As noted earlier, when asked at the certification hearing, O’Connor’s counsel did not know if the cell number Diversified used to contact O’Connor was assigned to him by U.S. Cellular. An individual case by case inquiry will be necessary to determine whether the debtors in the proposed class consented to be contacted on their cell phones regarding their debt to U.S. Cellular by providing their cell number to U.S. Cellular. Discovery into the debtor’s agreements with U.S. Cellular will involve an individual inquiry into each plaintiff’s agreement. Such an individualized inquiry weighs against class certification. See Versteeg v. Bennett, Deloney, & Noyes, P.C., 271 F.R.D. 668, 674 (D.Wyo.2011)(discovery issue of whether individual proposed class members provided their cell number to creditors which were called by a debt collector precluded the certification of a class for a TCPA claim); Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D.Pa.1995) (denial of class certification where an individual inquiry would be undertaken regarding a consent to receive facsimiles). As a result, a certification of a class action claim under the TCPA is not appropriate.