Doing it the Hard Way: Court Certifies Impossibly Fractured TCPA Class

In TCPAWorld, where there is a will there’s a way. That’s not always a good thing.

In Bauman v. Saxe, Case No. 14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 4567 (D. Nv. Jan. 10, 2019) we face another disastrous TCPA certification ruling. There the Court granted Plaintiff’s long pending motion for certification by unilaterally cutting Plaintiff’s overly broad classes into bite-sized morsels. The resulting Bauman class definition appears to the broadest non-settlement TCPA class to achieve certification. It reads, “All past, present, and future customers of a Saxe Defendant who reside in the United States or its territories and whose cellular telephone numbers were sent a text message by Defendant which promoted a product, good, or service of a Saxe Defendant.” Notice that there is no attempt to limit the class to individuals that received calls without express written consent—a deficiency that should have proven fatal given the Defendant’s factual showing regarding the source of phone numbers—and no requirement that the texts were sent using an ATDS. Holy moly, that’s a broad class!

So, what’s going on here? Well first, the Bauman class counsel used some clever sleight of hand. Class counsel defined a primary class of “All past, present, and future customers of a Saxe Defendant who reside in the United States or its territories and whose cellular telephone numbers are or will be in the possession, custody, or control of a Saxe Defendant.” Such a class is obviously not certifiable since mere possession of a phone number will never be sufficient to state a TCPA claim. (Ok, maybe in the Ninth Circuit.) But by comparison, then, a subclass consisting of everyone that received a text from the Defendant promoting goods or services seems relatively tailored – tricky, tricky.

But there’s more to this. The Court accounts for the breadth in the certified class by building in subclasses accounting for: i) class members receiving calls before and after the FCC’s express written consent rules went into effect; and ii) class members that did and did not provide consent or a release. Essentially the court certifies numerous classes without passing on the strength of the defenses available to members of each class. But notice the questionable assumptions built into the presumed “commonality” between members of each of these subclasses—did all members that signed a release sign the same release? Were all express consent forms identical? Prior to the express written consent requirements were all oral manifestations of consent given in the same way and under the same or similar circumstances? Absent an affirmative answer to these questions it seems clear that consent would remain an individualized inquiry as to each of the Court’s sliced and diced subclasses. Unfortunately, the Court’s ruling is unclear on these rather critical issues.

And in perhaps the scariest part of the ruling, the Court recognizes that the two named class representatives only have standing to represent two of the numerous subclasses the Court creates. Yet the Court grants class counsel leave to identify suitable class members to represent the remaining subclasses to be certified: “Because it is likely that there are class members in existence who could adequately represent the first two subclasses, the Court will grant the Plaintiffs leave to amend to add named Plaintiffs to represent the first two subclasses.” That’s right; the Court certifies classes without valid class representatives before it. Talk about a standing issue!

Bauman is an odd case and an alarming one. As ever before, TCPA class defense counsel must be vigilant to introduce affirmative evidence demonstrating an absence of commonality amongst every component of a potential class. If not, a court may slice and dice its way to a makeshift certification order. I’ve said it before and I’ll say it again—TCPA class action defense is not for the faint of heart or the green of horn. Take this stuff seriously folks.