Eleventh Circuit Reverses Class Cert, Citing Uninjured Class Members

TCPA Connect

Vacating a class certification order, the U.S. Court of Appeals, Eleventh Circuit, held that unnamed members of the putative class who did not ask the defendant to stop calling them were not injured by the defendant’s failure to maintain an internal do-not-call list and thus did not have standing to sue over such violations.

Sebastian Cordoba sued DirecTV under the Telephone Consumer Protection Act (TCPA), alleging that he received 18 calls from Telecel Marketing Solutions, a third party with which DirecTV contracted to provide telemarketing services. Cordoba alleged he received the calls even though his number was listed on the National Do Not Call (DNC) Registry and despite the fact he repeatedly asked not to be contacted.

Cordoba sought to certify two classes of consumers: one group of all individuals who received more than one telemarketing call from Telecel on behalf of DirecTV while it failed to maintain an internal do-not-call list and a second group of those whose telephone numbers were on the DNC Registry but who received a call from Telecel.

A district court certified both classes, but the federal appellate panel reversed with regard to the first group, explaining, “The unnamed members of the putative class who did not ask DirecTV to stop calling them—and thus would not have been on the internal do-not-call list, even if it had existed and had been maintained perfectly—were not injured by the failure to comply with the regulation. … That means their injuries are not fairly traceable to DirecTV’s alleged wrongful conduct, and therefore they lack Article III standing to sue DirecTV.” The Eleventh Circuit noted that the second class did not pose the same problems of traceability and redressability as the first class did.

Cordoba himself—who repeatedly asked not to be called—has standing. “But the fact that many, perhaps most, members of the class may lack standing is extremely important to the class certification decision,” the panel explained. “In a case like this—where the class certification has proceeded under Rule 23(b)(3)—the district court is required to determine whether ‘the questions of law or fact common to class members predominate over any questions affecting only individual members.’”

“Determining whether each class member asked Telecel to stop calling requires an individualized inquiry, and the district court did not consider this problem at all when it determined that issues common to the class predominated over issues individual to each class member,” the court said. The Eleventh Circuit therefore concluded that the district court abused its discretion in certifying the class as currently defined. Thus, it vacated the class it certified and remanded for further proceedings.

To read the opinion in Cordoba v. DirecTV, click here.

Why it matters: The Eleventh Circuit was clear: When considering class certification, district courts must evaluate the Rule 23(b)(3) standard, asking whether “the questions of law or fact common to class members predominate over any questions affecting only individual members.” As the district court failed to do so in Cordoba, the panel decertified the class and remanded the case. Moreover, the Eleventh Circuit reiterated that calls placed in violation of the TCPA constitute injuries in fact, but that recipients of such calls who never asked the caller to stop calling do not have standing to sue over regulations concerning internal do-not-call lists, because their injuries are not traceable to the telemarketer’s misconduct.

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