In Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964 (D.Or. 2014), Judges Steward found that Plaintiffs had adequately pleaded a TCPA class action and allowed it to proceed beyond the pleadings stage. The facts were as follows:
Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection Act, 47 USC § 227 et seq, (“TCPA”), by means of a nation-wide telemarketing scheme targeted at U.S. military veterans. Defendant, Mortgage Investors Corporation of Ohio, Inc. (“MIC”), is a mortgage lending company doing business under several other names and specializing in Interest Rate Reduction Refinance Loans (“IRRRLs”) guaranteed by the U. S Department of Veterans Affairs. The individual defendants are directors, officers and employees of MIC. The TCPA prohibits using a predictive dialer to make any telephone call for non-emergency purposes to a number assigned to a “cellular telephone service” without the “prior express consent of the called party.” 47 USC § 227(b)(1)(A)(iii). The TCPA also prohibits initiating two or more telephone calls within a 12–month period to a residential telephone line in violation of either the internal do-not-call rules or National Do–Not–Call Registry (“NDNCR”) rules enacted by the Federal Communications Commission (“FCC”). 47 USC § 227(c)(1)-(2) (internal do-not-call lists); 47 USC § 227(c)(3) (NDNCR); 47 CFR § 64.1200(c)-(d)(FCC). A person who receives a call in violation of these prohibitions may bring a civil action to recover statutory damages of $500.00 per violation, as well as treble damages and injunctive relief. 47 USC § 227(b)(3), (c)(5)(A)-©. Plaintiffs allege that defendants violated the TCPA by: (1) initiating calls through an Automated Telephone Dialing System (“ATDS”) to cellular telephone numbers for non-emergency purposes (First Claim); (2) continuing to make calls to individuals who made “do-not-call requests” (Third Claim); and (3) initiating more than one call within a 12–month period to individuals on the NDNCR (Fifth Claim). Alleging that the violations were “knowing and/or willful,” plaintiffs seek statutory damages up to $500.00 and treble damages up to $1,500.00 for each call that violated the TCPA (Second, Fourth and Sixth Claims).
The District Court found that the Plaintiff need not plead the number called.
First, they assert that plaintiffs fail to identify any telephone number that was called in violation of the TCPA. In support, they cite a district court case which required the plaintiff to plead her cellular telephone number; otherwise “TCPA defendants are forced to make educated guesses as to which telephone number belongs to a newly filed plaintiff.” Strand v. Corinthian Colleges, Inc., No. 1:13–cv–1235, 2014 WL 1515494, at *3 (WD Mich. Apr. 17, 2014). However, Strand is contrary to most other district courts, including many in the Ninth Circuit, that do not require such detail at the pleading stage in order to provide adequate notice to a TCPA defendant. Crawford v. Target Corp., No. 3:14–CV–0090–B, 2014 WL 5847490, at *3–4 (ND Tex Nov. 10, 2014) (rejecting Strand and finding that “a plaintiff’s specific telephone number is not essential to providing a defendant notice of the conduct charged”); Baker v. Caribbean Cruise Line, Inc., No. CV 13–8246–PCT–PGR, 2014 WL 880634, at *3 (D Ariz Mar. 6, 2014); Manfred v. Bennett Law, PLLC, No. 12–CV–61548, 2012 WL 6102071, at *2 n2 (SD Fla Dec. 7, 2012) (“Plaintiff need not allege his specific cellular telephone number. The statute simply states that the call must be made to ‘any telephone number assigned to a … cellular telephone service.’ ”); Robinson v. Midland Funding, LLC, No. 10–cv–2261–MMA(AJB), 2011 WL 1434919, at *3 (SD Cal Apr. 13, 2011) (“federal ‘notice pleading standards do not require a plaintiff to allege details at the pleading state about the time and context’ of every telephone call”), quoting Kramer v. Autobytel, Inc., No. 10–cv–02722 CW, 2010 WL 5463116, at *6 (ND Cal Dec. 29, 2010); Reyes v. Saxon Mortg. Servs., Inc., No. 09–cv–1366–DMS(WMC), 2009 WL 3738177, at *4 (SD Cal Nov. 5, 2009) (TCPA claim adequately stated by alleging that the defendant “frequently made calls to Plaintiff’s cell phone using an automatic telephone dialing system (including an automated dialing machine, dialer, and auto-dialer) and an artificial or prerecorded voice”). Here plaintiffs have made sufficient factual allegations regarding defendants’ calls in violation of the TCPA to survive a motion to dismiss. “[I]f there is a question about the phone number at issue, it can be addressed through discovery.” Jackson v. HSBC Mortg. Servs., Inc., No. 2:14–CV–1240–RDP, 2014 WL 5100089, at *4 (ND Ala Oct. 10, 2014); see also Sprogis v. Suntrust Bank, No. 6:13–CV–635–Orl–37, 2013 WL 2456090, at *2 (MD Fla June 6, 2013) (information such as the frequency of the calls, the date of the class, and the telephone number from which the call were received “is more likely to be in Defendant’s records and accessible through discovery”).
The Court found that consent was no impediment to maintaining a class action at the pleadings stage.
Consent, however, does not create an ascertainability issue for several reasons. First, “the class definition does not turn on consent, and consent is more appropriately addressed under Rule 23(b)(3)’s predominance inquiry.” Kristensen, 2014 WL 1256035, at *6. Second, MIC erroneously contends that plaintiffs must allege and prove the lack of prior express consent. In Grant v. Capital Mgmt. Servs., L.P., 449 Fed App’x 598, 600 n1 (9th Cir2011), the Ninth Circuit held that “ ‘express consent’ is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof.” In support, it cited the FCC’s conclusion “that the creditor should be responsible for demonstrating that the consumer provided prior express consent” because the creditor is “in the best position to have records kept in the usual course of business showing such consent.” In re Rules and Regulations Implementing the [TCPA], 23 FCC Rcd 559, 565 ¶ 10 (Jan. 4, 2008). Many district courts, including those in the Ninth Circuit, have followed Grant. Sailola v. Mun. Servs. Bureau, Civ. No. 13–00544 HG–RLP, 2014 WL 3389395, at *7 (D Haw July 9, 2014); Gaines v. Law Office of Patenaude & Felix, A.P.C., No. 13cv1556–JLS(DHB), 2014 WL 3894348, at *4 (SD Cal June 12, 2014); Elkins v. Medco Health Solutions, Inc., No. 4:12CV2141 TIA, 2014 WL 1663406, at *6 (ED Mo Apr. 25, 2014) (citing cases); Heinrichs v. Wells Fargo Bank, N.A., No. C 13–05434 WHA, 2014 WL 985558, at *2–3 (ND Cal Mar. 7, 2014); Shupe v. JPMorgan Chase Bank of Ariz., No. CV 11–00501–TUC–RCC, 2012 WL 1344820, at *4 (D Ariz Mar. 14, 2012). MIC, however, points to Meyer v. Portfolio Recovery Assocs., LLC, 707 F3d 1036, 1043 (9th Cir2012), cert. denied, 133 S Ct 2361 (2013), which stated, in the context of conditionally certified a class for a preliminary injunction, that “[t]he three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an [ATDS]; (3) without the recipient’s prior express consent.” One district court has interpreted Meyer, contrary to Grant, to require a TCPA plaintiff to prove the lack of prior express consent. See Smith v. Microsoft Corp., 297 FRD 464, 471 (SD Cal 2014) (“ Meyer mandates that it is Plaintiff’s burden to show a lack of express prior consent.”). However, Meyer did not decide whether a plaintiff must affirmatively plead a lack of consent in order to survive a motion to strike at the pleading stage. In light of the specific ruling in Grant and the FCC’s statements, Smith is not persuasive. Since the face of the Second Amended Complaint does not reveal that MIC had express consent before it called cell phones, MIC’s speculation that some members of the Cell Phone Class may have given their express consent is not sufficient to strike that class action allegation for lack of standing.
On the issue of commonality, the District Court found:
However, the consent issue is quite different with respect to the other two putative classes. This court “cannot determine from the face of the pleadings that a class is not certifiable as a matter of law, as there are factual and legal issues yet to be determined.” Lyons v. Coxcom, Inc., 718 F Supp2d 1232, 1236 (SD Cal 2009). With respect to the Cell Phone Class, unless and until MIC comes forward with some evidence that it received prior express consent before it called putative class members, there is no barrier to certification. This is not a matter that can be resolved from the face of the Second Amended Complaint and, thus, is not a basis for striking those class allegations.