Hi TCPAWorld!
A recent Florida decision came out with an interesting certification ruling.
In Duverger v. Real Estate Sales Force Inc., No. 1:25-cv-20002-EA, 2026 WL 3189674 (S.D. Fla. Sept. 28, 2026), the Southern District of Florida partially granted Plaintiff’s motion for class certification, allowing a prerecorded call class to proceed while denying certification of a proposed National Do Not Call Registry class.
What makes this decision particularly interesting is the Court’s treatment of two very different issues: vicarious liability and the identification of residential telephone numbers.
Let’s get into it.
Plaintiff alleged that she received unsolicited calls from a real estate agent affiliated with Real Estate Sales Force Inc. (“RESF”), including an unanswered call that resulted in a prerecorded voicemail, despite her telephone number being registered on the National Do Not Call Registry.
Plaintiff sought certification of two classes: a pre-recorded call class and a National Do Not Call Registry class.
To support certification of the pre-recorded class, Plaintiff relied on an expert analysis identifying 348 calls to 257 unique wireless telephone numbers associated with a “Drop Voicemail” disposition.
RESF opposed certification, arguing that Plaintiff failed to establish that the agent responsible for the alleged calls was acting on RESF’s behalf. Specifically, RESF pointed to evidence that the agent independently purchased his Mojo account, used a personal email address, obtained his own training, and was not instructed by RESF to violate the TCPA.
In other words, RESF disputed whether it could be held vicariously liable for the agent’s alleged conduct.
But the Court was not convinced.
Although the Court acknowledged that RESF’s evidence could ultimately support its defense against vicarious liability, it explained that Plaintiff was not required to establish vicarious liability at the class certification stage.
Rather, the current question was whether the issue could be resolved through common evidence.
Because RESF’s policies, training, oversight, and relationship with its affiliated agents could be used to determine whether RESF was vicariously liable for the alleged calls on a classwide basis, the Court found that common questions predominated and certified the prerecorded call class.
Here’s what’s interesting. A defendant may have evidence supporting its position that it did not authorize or ratify the alleged calls yet still face class certification if the issue can be resolved through common evidence.
And that is precisely what happened here.
When analyzing the proposed National Do Not Call Registry class, the Court reached a different conclusion.
Plaintiff’s expert identified 535 calls to 192 unique telephone numbers that had been registered on the National Do Not Call Registry for more than 30 days and received at least two calls within a 12-month period.
But this was not sufficient.
The proposed class specifically required the telephone numbers on the National Do Not Call Registry to be residential numbers. Although Plaintiff’s expert established a methodology for identifying registered numbers and call frequency, the analysis failed to establish residential status.
And the Court made an important distinction: identifying a telephone number as wireless or cellular is not the same as establishing residential use or residential-subscriber status.
Despite Plaintiff’s argument that the expert’s analysis was unrebutted, the Court emphasized that Plaintiff retained the burden of satisfying Rule 23.
Without an objective methodology for identifying residential numbers, the Court denied certification of the Do Not Call Registry class without prejudice.
So, while Plaintiff secured certification of the prerecorded call class despite unresolved questions concerning vicarious liability, she could not obtain certification of the Do Not Call Registry class without evidence establishing that the numbers satisfied the proposed class definition.
Common evidence may be enough to allow a disputed liability issue to proceed on a classwide basis, but it cannot make up for missing evidence necessary to identify who belongs in the class.
As always, stay tuned for more updates!