Ouch: Brutal TCPA Certification Ruling Uses Agency as Common Issue and Finds Defendant Waived Key Arguments While Failing to Introduce Necessary Evidence on Consent

Wednesday was a bad day for a TCPA defendant in a case down in San Diego.

As I’ve said many times, strange rules exist in TCPA certification cases that do not exist anywhere else—chief among them, the requirement that a defendant introduce affirmative evidence that class members consented in order to defeat certification. This rule flies in the face of the ordinary certification structure where the party seeking certification—usually the Plaintiff—has the burden of proof on every Rule 23 component, including predominance. But ever since an obscure district court decision from the N.D. Ill called Jamison v. First Credit Services, Inc., 290 F.R.D. 92, 106 (N.D. Ill. 2013) many TCPAWorld courts (properly or improperly) have concluded that a TCPA Defendant owns the burden of proof on predominance. As Jamison found: “issues of individualized consent predominate when a defendant sets forth specific evidence showing that a significant percentage of the putative class consented to receiving calls on their cellphone. However, if the defendants fail to set forth this specific evidence and instead only make vague assertions about consent, then individualized issues regarding consent will not predominate over common questions of law or fact so as to prevent class certification.”

While the rule of Jamison is undoubtedly incorrect—again it is the Plaintiff’s burden to demonstrate every element of Rule 23—it has gained significant traction in TCPAWorld and every Defendant seeking to defeat certification must assume that a court will impose such an evidentiary burden on it. Fall short of it at your peril.

Which brings us to this week’s decision in Moser v. Health Ins. Innovations, Inc., Case No.: 17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 132790 (S.D. Cal. Aug. 7, 2019). In that case the primary defendants were allegedly cold-calling folks to market health insurance products using automated technology. The company primarily responsible for placing calls, purportedly on behalf of the remaining defendants, defaulted leaving several upstream purported participants in the marketing “scheme” to pick up the pieces. It didn’t go well.

First, there are a host of problems with the class definition—not the least of which that the class only includes people that were called using an ATDS, a plain merits issue, but these issues did not appear to be raised to the court. Moreover, the Court found that the Defendant’s delayed effort to raise the Supreme Court’s Bristol Myers Squibb decision to thwart the claims of out-of-state class members was insufficient and the argument was waived since it was not in the Defendant’s original answer. Ouch.

As to commonality the Court looked at whether or not the upstream defendants were liable for the caller’s conduct as common issues sufficient to certify the class. This is a bit of legal jujitsu as most cases look at the fact-specific inquiries surrounding agency as a basis to defeat certification. But the Court in Moser concluded that the issue was actually common as to each specific Defendant. The court also found whether Defendant used an ATDS was a common issue, which is a tad amusing since ATDS usage was actually (improperly) part of the class definition.

In another damaging, although not entirely surprising, portion of the ruling the court found that Mr. Moser—a frequent-flyer in TCPA circles—had standing to represent the class and was not, by virtue of his status as a semi-professional TCPA Plaintiff, thereby inadequate to represent the class or atypical of other class members.

But the real meat of the case—as it is in most TCPA certification decisions—is on predominance. There the old rule of Jamison rears its oh-so-ugly head. As the Moser court puts it: “Defendants have provided no evidence that Plaintiff or members of the putative class provided consent to receive calls from the Defendants. Without evidence of consent, the Court cannot deny class certification because of the prospect of individualized consent determinations.”

This portion of the ruling is actually very interesting because the Defendants did introduce evidence of the need for mini-trials—just not on the issue of consent. Rather the primary Defendant whose records were being used as the predicate for the class made calls on behalf of many companies—not just the sued defendants. And there was, apparently, no way to tell from the class data which calls were made to sell the products of the defendants vs. other products. But the court was unmoved. In the absence of evidence on consent, the case was certifiable in the Court’s view. Indeed, the Court likened Defendants’ “we can’t tell who we called” argument to an ascertainability challenge, which is dead in the Ninth Circuit.

So there you have it—another TCPA certification order proving that TCPAWorld is not for the faint of heart or the green of horn.

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