I love a well-written certification denial in the morning. Especially from Florida. Especially rejecting a new and novel certification theory. Oh hey, look at this.
As the years roll by it has become clearer and clearer that TCPA revocation class actions are simply not certifiable. Indeed, these classes rarely survive the pleadings stage these days. See Cholly v. Uptain Grp., Inc., No. 15 C 5030, 2017 U.S. Dist. LEXIS 14449, at *11 (striking revocation class because “individual inquiries necessary to determine class membership will ‘inevitably predominate’ over any common questions of fact”); Wolfkiel v. Intersections Ins. Servs. Inc., 303 F.R.D. 287, 293 (N.D. Ill. 2014) (striking “revocation class” allegations because “in order to determine whether each potential class member did in fact revoke his or her prior consent at the pertinent time, the Court would have to conduct class-member-specific inquiries for each individual.”)
Nonetheless, our ever-industrious “friends” on the Plaintiff’s side are never short of creative arguments designed to overcome legal hurdles–no matter how seemingly insurmountable. Confronted with a solid line of cases holding that TCPA revocation is an extremely fact intensive inquiry–meaning that individualized issues abound and certification is impossible– would-be class representatives needed to dream up a way to demonstrate revocation across the entire class. But how?
Submitted for your consideration: the “revocation-by-bankruptcy” TCPA class. I have seen a number of these cases field over the last few years. The theory is simple–the class members are all individuals that sought and received a BK discharge regarding the debt that a collector subsequently called them about. Assuming you can find those people–and that may not be so simple as it seems– consent to receive those calls seems to be classwide issue. Either the BK discharge did, or did not, revoke consent across the entire class meaning that each subsequent call to the class members is either illegal or legal, right?
As the Court explained in Rivera v. Servis One, CASE NO. 3:17-cv-722-J-39JBT ,2019 U.S. Dist. LEXIS 35983 (M.D. Fl. Jan. 24, 2019), determining whether consent was initially revoked–although perhaps a classwide issue– is only the first step in determining the legality of any specific phone call. This is true because consumers will often re-consent to receive calls–and this is especially true with calls from a mortgage servicer. As the Rivera court explained:
Although it may be possible to determine on a class-wide basis whether the subject discharge orders initially constituted a revocation of consent, an individualized inquiry would still have to be made to determine if required consent was subsequently provided again.
The Rivera court looked with favor upon Defendant’s evidence opposing certification to the effect that “it is common for customers who have had their mortgage debt discharged to consent to receiving communications thereafter because the customers want to prevent foreclosure and keep the subject properties by, for example, modifying the subject loans.” See Rivera at *21. And notably, unlike recent decisions focusing on the percentage of class members that did or did not consent as the key to assessing certification, Rivera accepted anecdotal and generalized evidence that it is “common” for class members to re-consent as a sufficient evidentiary basis to deny certification. (For the uninitiated, courts in TCPAworld–for some reason–put the onus on the Defendant to prove that class members consented to avoid certification. See the case that started it all– Jamison v. First Credit Services, Inc. and American Honda Finance Corp., 2013 WL 1248306, at *2, 2013 U.S. Dist. LEXIS 43978, at *4-5 (Mar. 28, 2013 N.D. Ill.)(holding that Defendant must show a “significant percentage” of class members consented to calls to avoid certification)
Not only did Rivera deny certification on predominance grounds– it also determined that the Plaintiff had not articulated an administratively feasible way to ascertain class members. Although the ascertainability debate rages amognst the Circuit Courts of Appeal the Eleventh Circuit (probably) adheres to the “administrative feasibility” test owing to two unpublished COA opinions. Applying that test the Rivera court determined that the class could not be ascertained because the Defendant’s data did not adequately track the proposed class definition. But going beyond the data to find class members required a file by file review:
[T]he only methodology [Plaintiffs] propose would not identify all class members. Specifically, the proposed search is limited to only those individuals who “were identified in [Defendant’s] records system as having received a Chapter 7 bankruptcy discharge.” Thus, individuals like these very Plaintiffs, who had received a discharge but who were not identified in Defendant’s records as having received a discharge, would not be included in the search results.
So there you have it. When a class is defined in a manner that is separate from the data within the Defendant’s records a proposed ascertainability plan that is underinclusive because it will not lead to an identification of all individuals in the class is insufficient to justify class certification. And it is no answer to say that remaining class members can be found via a hunt-and-peck through the Defendant’s files. The class representative must articulate a feasible plan to dutifully find all class members or else pass the winter alone.
And TCPAworld turns.