Nothing Common About This Ruling: Court Finds Lack of Even a Threshold Common Issue in TCPA Certification Bid
Wednesday, September 5, 2018
tcpa, threshold, commonality, 23(f), scotus, class action

Class actions under the Telephone Consumer Protection Act (“TCPA”) are rarely, if ever, certified in the debt collection context outside of highly-unique circumstances. So today’s decision in Frederick Luster v. Green Tree Servicing, LLC, Case No. 14-cv-01763, Doc. No. 153,  (N.D. Ga. Sept. 5, 2018) is hardly newsworthy from that perspective.

Nonetheless, there are two components of the Luster decision–found here Luster Order Denying Class Certification— that are very interesting.

First, the case represents the second time in a month that an “expert” report of Jeff Hansen has been excluded due to his failure to inspect equipment: “The Court agrees with Defendant that Hansen’s failure to inspect the specific autodialers at issue here-the Aspect and Concerto systems-and his failure to observe the manner in which Defendant places calls are fatal to Hansen’s testimony.” See Luster at *7. This is similar to the rulings reached in Keyes a couple weeks back.

While excluding an expert witness on such grounds is presumably a good thing for a Defendant, as I remarked on the Ramble a little while ago, these rulings are a bit of a double-edged sword because they enhance Plaintiffs’ arguments that a site inspection is needed in discovery.

Second, and perhaps more interestingly for class action practitioners, the Court denied certification finding that the Plaintiff had failed to make a threshhold showing of commonality under Rule 23(a)(2). See Luster at * 15-16. This is fascinating. While TCPA certification denial is commonplace, courts usually find that Plaintiff satisfied the “lower” bar of demonstrating commonality under Rule 23(a)(2) before torching the certification bid on predominance grounds under Rule 23(b)(3).

In Luster, however, the court focused on the U.S. Supreme Court’s requirement in Dukes that a common issue underpinning a Rule 23(a)(2) commonality showing “must be of such a nature that it is capable of class wide resolution–which means that determination of its truth of falsity will resolve an issue that is central to the validity of each of of the claims in one stroke.” Id. at *15 citing Dukes, 564 U.S. at 350.  While the Plaintiff flagged issues respecting the use of an ATDS and whether Defendant’s conduct was willful as “common” issues the court was unmoved. Instead the Court found the “outcome-determinative” issue to be whether or not class members consented to each call. That showing–not surprisingly–was found to rely on individualized proof and, as such, no commonality was present on the critical TCPA liability issue.

So the Luster court essentially frontloads the predominance analysis encapsulated in Rule 23(b)(3) into the Dukes “one stroke” analysis of Rule 23(a)(2) by collapsing TCPA cases into single outcome-determinative issue: consent.  The court refused to credit any other common issues in the case as an “issue central to the validity of each” TCPA claim and the Plaintiff’s failure to demonstrate commonality on consent ended the inquiry immediately.

While the unique analysis Luster applied may not matter in most cases it is critically important in TCPA class actions seeking solely injunctive relief. Rule 23(b)(3) is only triggered in cases seeking damage awards–which are the bulk of TCPA classes, of course–but not all Plaintiffs seek statutory damages and some putative class counsel hope to recover fees solely by virtue of effecting a policy change in a defendant. Leveraging the analysis of Luster, however, even these injunctive-only TCPA classes should be easily defeated. And that’s a nifty little arrow to keep in your quiver.


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