Well, they’ve finally gone and done it.
The folks at Leiff Cabraser have been chasing a unicorn for years. Seeking to certify a debt collection class action involving anyone who did not provide their phone number at the time of application for credit. Such a class should never be certified–the predicate for class membership has nothing to do with the merits of the suit–as individualized issues will always swarm the non-existent “common” issues. Nonetheless, their persistence has paid off and a first-of-its-kind ruling is their reward.
This might be the oddest TCPA certification order to date. Buckle up folks, it is about to get rocky.
In Brown v. DirecTV, LLC, Case No. CV 13-1170 DMG (Ex), 2019 U.S. Dist. LEXIS 54831 (C.D. Cal. March 29, 2019) Plaintiff managed to convince a court to certify a TCPA class of individuals who received debt collection calls from the Defendant on numbers that the call recipient did not provide to the Defendant at time of application. The Court found common issues predominated despite finding—as I discussed earlier today—that a Defendant does not have to collect consent at the time of application in order to have a valid defense. But if a Defendant can obtain consent after the time of application, how in the world did the Court certify this class? Let’s discuss.
On commonality, the Court properly identifies the Dukes standard requiring the putative class members’ claims “must depend upon a common contention” that is “of such nature that is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Brown at *10. So far so good. The Court then summarizes the Plaintiff’s class as “seek[ing] to identify putative class members who also did not consent to be called at their cellular phone number, but who nevertheless received a prerecorded call from Defendant’s debt collectors on their cellular phone to collect an alleged debt.” Brown at *11. Wait. Full stop. Back up.
The class definition in Brown was “All persons residing within the United States who, on or after four years prior to the filing of this action, received a non-emergency telephone call(s) from DIRECTV and/or its third-party debt collectors regarding a debt allegedly owed to DIRECTV, to a cellular telephone through the use of an artificial or prerecorded voice and who did not provide the cellular phone number called on any initial application for DIRECTV service.” Again, the factual predicate for class membership is that the number was not provided on the initial application. So although the court correctly recognizes that “one way” consent can be provided is via supplying the number on the initial application that is not the only way.
So how does the absence of a number on the application assure commonality between the class members on the issue of consent?
If the class were defined conversely—i.e. a class of all individuals who did provide consent on the initial application then commonality would exist. Whether or not that consent was valid would be common to the class. But determining a class to have a common position on the issue of consent based upon a non-occurrence only makes sense if that occurrence is necessary to prove or defeat a claim. But that’s not the case here. Nonetheless the Court finds: “Plaintiff and the putative Class and Subclass members share the common contention that they all received similar prerecorded calls without their prior express consent.” Huh?
As much as I want to sit here with my arms folded and defiant, let’s be bold and venture on because more delights await.
As to predominance the Court first determines that the class definition is pleaded using objective criteria and is not a failsafe. Here I agree. Whether or not a class member provided a number to the Defendant is objectively-defined criteria—albeit one that is not dispositive of any key issue in the case—so the class is not defined using merits-based criteria and, hence, is not a failsafe. Ok.
Moving to whether individualized issues of consent predominate, the Court begins by observing that a debt collector does not need to collect consent at the time of initial application as Plaintiff had argued. Great. That is undoubtedly correct and non-controversial.
Jumping over the necessary impact of that ruling on the merits of the certification motion, however, the Court delves into the Defendant’s written consent disclosures—acknowledging that they vary over time. While such variances alone have been held to defeat certification in multiple cases, the Brown court found a way around it. Reviewing the consent “disclosures the Court found that whether a putative Class or Subclass member consented to calls based on the operative version of the Agreement can be determined by looking through Defendant’s record of that customer’s account to determine the last version of the Agreement the customer accepted.” Sounds like a pain but—maybe.
But really, the focus on consent disclosures misses the point. In a debt collection TCPA class action what matters most is the impossibility of determining the source of each phone number, i.e. did the number come from the called party or not and under circumstances that do or do not allow consent to be presumed. In Brown the court never addresses that most critical issue and focuses exclusively on the written disclosures—which are just suspenders when the collector is already wearing the world’s biggest belt— completely ignoring the myriad additional ways a consumer may have consented to receive calls.
While there are other aspects of the case that deserve mention—the court leaping the hurdle of class member arbitration, the certification of a ‘wrong number’ subclass that defies ascertainability and the short shrift given to the individualized issues created by the vicarious liability angle asserted in the case—the determination that common issues of consent (there are none) predominate over individualized issues of consent in a multi-source debt collection class action is simply remarkable.
Indeed, to my (encyclopedic?) knowledge of TCPA certification decisions, Brown is a first of its kind certification. Never before has a multi-source TCPA debt collection class action of this sort been certified. On the contrary, there are at least a dozen cases holding that certification of a suit of this sort is not possible. And the Brown court’s own analysis—recognizing that consent can be obtained after the time of application—seems to emphasize exactly why: consent for each and every call may have arisen in myriad ways at any time before each challenged call was made.
Nonetheless, at a moment like this all you can do is tip your hat. Congrats Daniel. You’ve finally won one of these. (But don’t expect it will ever happen again.)