Trouble for TCPA Plaintiffs in Baton Rouge–Court Denies Class Certification, Twice!

There are some useful takeaways for class action litigators from a recent decision out of the Middle District of Louisiana. Taylor Carroll Sgs Auto. Servs., CIVIL ACTION 16-537-SDD-RLB, 2021 U.S. Dist. LEXIS 116340 (M.D. La.  June 22, 2021). Among them: do not seek reconsideration by arguing against what you argued before. It won’t work. . . .

But I’m jumping ahead. So let’s start at the start–or at least at class certification briefing.

In a putative class action against an automotive services company, Plaintiff sought to certify a TCPA class and engaged in “circuitous and prolonged briefing that involved multiple amendments to the proposed class definitions.” Ultimately, the Court found Plaintiff’s proposed expert unreliable and denied the class; the Court reasoned that the putative class was:

not sufficiently ascertainable because, after [Plaintiff’s] expert was excluded, the only means of identifying [class members] was [the company’s] own call logs, which, in addition to not identifying [Plaintiff] himself, were not shown to be sufficiently reliable for that purpose.

Rather than moving on, Plaintiff moved for reconsideration. Recounting Rule 54(b) and Fifth Circuit case law, the Court explained that reconsideration of class certification is appropriate only in narrow circumstances: change in intervening law, new evidence, or clear error likely to cause manifest injustice. Plaintiff did not meet his burden.

Instead, Plaintiff argued against himself. Specifically, he argued that the Court applied the wrong law by requiring the class definition be “sufficiently definite in that it is administratively feasible for the court to determine whether a particular individual is a member.” In response, the Court noted that plaintiff “himself presented the administrative feasibility requirement as controlling law” in his original motion. Given that, Plaintiff failed to “show an intervening change in the law that compels a reconsideration of this Court’s ruling.” Nor did Plaintiff offer new evidence.

Finally, Plaintiff also failed to convince the Court “manifest injustice” existed. As the Court explained it, Plaintiff sought certification of “a class based on call logs that did not identify him, with ‘corroboration’ provided by an expert that this Court concluded was unreliable.” Plaintiff–according to the Court–“chastises the Court for being unwilling to make a leap of faith that his proffered call logs could reliably identify class members.” That, however, is just not enough. Following Fifth Circuit precedent, the Court must “‘find,’ not merely assume, the facts favoring class certification.”





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