In a slowly developing chain of rulings reaching the same conclusion, a federal district court denied a plaintiff’s motion for class certification on TCPA claims because the individual question of express consent by each purported class member defeated commonality and predominance under Federal Rule of Civil Procedure 23. 

In Balthazor v. Central Credit Services, Inc., et al., --- F.Supp.3d--, 2012 WL 6725872 (S.D.Fla. December 27, 2012), the Plaintiff alleged on behalf of herself and a class that the a debt collection agency used an automatic telephone dialing system or a pre-recorded or artificial voice to place telephone calls to cell phones without express consent in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii).  The Court denied the Plaintiff’s motion for class certification holding that Plaintiff failed to establish the commonality requirement of Rule 23(a)(2) and the predominance requirement of Rule 23(b)(3). The Court reasoned that whether each class member provided individual express consent to be called on a cell phone would “necessarily involve an individual assessment of whether each class member consented to receive telephone calls on their cellular telephone” resulting in individualized inquiries or mini-trials for each class member.

The Court agreed with the rulings in Hicks v. Client Services Inc., No. 07-cv-61822 (S.D. Fla. Dec. 11, 2008), Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 329 (5th Cir. 2008), and Conrad v. Gen. Motors Acceptance Corp., 283 F.R.D. 326, 330 (N.D.Tex.2012), in which each of the courts denied motions for class certification for the same reason.  The Balthazor Court explained that Plaintiff failed to meet her burden of establishing evidence of a method for classwide proof of the lack of consent.

The Balthazor Court rejected Plaintiff’s reliance on a Ninth Circuit ruling, Meyer v. Portfolio Recovery Associates, LLC, 696 F.3d 943 (9th Cir. October 15, 2012), amended and superseded on other grounds, --- F.3d ---, 2012 WL 6720599 (9th Cir. December 28, 2012), in which the appellate court affirmed the district court’s grant of certification in a TCPA class action.  The Balthazor Court dismissed the relevancy of the Meyer Court’s ruling because it addressed a different issue—whether class certification was appropriate where some class members might have agreed to be contacted at a telephone number obtained after the original transaction.  The Balthazor Court explained that the Federal Communications Commission had already addressed that question in a ruling stating that “consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.”  See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int'l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 565 (Jan. 4, 2008).

This defeat of class certification on TCPA claims is a welcome relief for those fighting class actions under the stiff penalties and strict liability of the TCPA. Stay tuned to the CFS-Lawblog as we continue to report on and analyze developments involving the TCPA.