Take it from a guy who has litigated a few (or a hundred) TCPA class actions, if you are relying on ascertainably to defeat certification you are probably barking up the wrong tree.
Nonetheless, the ascertainability rule—where it exists—does serve an important gatekeeping function and assures that judgment isn’t entered for or against a vapor class. Plus, ascertainability may be the best—perhaps only—way for a Defendant to really highlight the difficulty of identifying who is in the class as part of a challenge to certification.
Arguably the lead case on the subject in the Eleventh Circuit—even though it is unpublished—is Karhu. There it was held that merely lobbing a reference to the content of Defendant’s records at a court is not sufficient to establish an ascertainability plan. Instead a real course toward identifying class members is needed—and that doesn’t mean merely allowing class members to identify themselves in an unchallenged manner. As the Eleventh Circuit panel wrote then:
On the one hand, allowing class members to self-identify without affording defendants the opportunity to challenge class membership ‘provide[s] inadequate procedural protection to . . . [d]efendants’ and ‘implicate[s their] due process rights.’ . . . On the other hand, protecting defendants’ due process rights by allowing them to challenge each claimant’s class membership is administratively infeasible, because it requires a ‘series of mini-trials just to evaluate the threshold issue of which [persons] are class members.
In other words, a court cannot just allow a Plaintiff to over notice potential class members and wait for actual class members to come forward—the Defendant has the right to challenge that every self-identifying class member isn’t really in the class. That, of course, creates an administrative headache—a crush of mini-trials. Exactly the sort of thing the “administrative feasibility” approach to ascertainability is supposed to prevent.
That’s why it is so odd that just last week a Magistrate Judge in Southern Florida recommended certifying a TCPA class action relying on nothing more than the presence of a call log, and seemingly blessed the use of self-identifying affidavits to find injured class members. In Eldridge v. Pet Supermarket, Case No. 18-22531-Civ-WILLIAMS/TORRES, 2019 U.S. Dist. LEXIS 142999 (S.D. Fl. Aug. 21, 2019)(Torres, J.) the court recommended certification of a TCPA class where a pet company blasted consumers with telemarketing messages when they tried to enter a sweepstakes using a shortcode. Consent was, apparently, not at issue in the case so the Court made short work of commonality and predominance considerations. The key to the Defendant’s strategy, then, was to convince the court that class members could not be ascertained. That didn’t go well.
The Court essentially ignored Karhu—I didn’t pull the briefing but I assume the case was briefed to the court— and concluded that the mere existence of records of phone numbers dialed by the Defendant was sufficient to ascertain class members. As the Court wrote: “the total universe of recipients can be [thereby] ascertained; the only challenge is to reduce the potential class to individuals who did not give Defendant consent for the receipt of Defendant’s text messages.”
Ummm, right. But that’s always the ascertainability challenge in TCPA cases—identifying class members with valid claims. That also happens to be the chief concern raised in Karhu. Nonetheless, the Eldridge court simply stops its analysis concluding it doesn’t matter anyway: “This [the inability to find injured class members] is no barrier to class certification, however, because a class may include persons who have not been injured by the defendant’s conduct.”
While it is true that a class definition need not perfectly track a merits theory–indeed it cannot without converting the class to a failsafe– it does not follow that concerns over identifying injured class members are thereby washed away. Indeed, it is precisely because a class definition will often include uninjured class members that a Plaintiff must put forth a plan to ascertain injured class members in an administratively feasible way.
What the Court seems to be saying is that an overly broad class is ok because injured class members can identify themselves through a claims process, but you have to go to a footnote to find that analysis in the court’s opinion. In footnote 3 the court remarks: “ to the extent Defendant’s contention [that it had consumer consent] is relevant, we see no reason why affidavits and/or subpoenas cannot resolve this issue.” So the court concludes that the Court can dispense with the whole “were these calls legal” thing (called a trial) by allowing class members to identify themselves as individuals who did not consent using “affidavits and/or subpoenas.”
But, as noted above, this ascertainability analysis is absolutely and completely at odds with Karhu. As noted above, Karhu makes clear that using self-identifying affidavits to identify class members only sets the stage for a crush of mini-trials on the issue of class membership. So the Eldridge court accepts what Karhu seemingly forcloseses.
I will not speculate as to what might be behind the result here–and the district court still has the opportunity to straighten the course assuming Defendant objects– but it suffices to observe that Eldridge seems to be a real outlier and inconsistent with the vast body of TCPA certification law.