You can pick your friends, you can pick your nose, and as the Southern District of Florida recently demonstrated, you most definitely can pick your plaintiff.

In two recent orders in case number 17-CV-62328, Powell v. YouFit Health Clubs, LLC, District Court Judge Bloom stressed the importance of typicality when picking a representative plaintiff for a putative class. When the case was ripe for certification, Judge Bloom denied Plaintiff Powell’s request because she was not typical of the putative class. For those of us in TCPA World hoping to squash a class before certification, add this principle to your toolkit. For those of us in TCPA World hoping to seek certification without a squashing, pick your proper (read: typical) plaintiff! And, for all of us, dissimilarities beware.

In Powell, Plaintiff brought her TCPA action after receiving two text messages from YouFit after she (allegedly) canceled her account with the fitness center. Plaintiff, unlike the remainder of the putative class, believed she was no longer a member of the center. The remaining class alleged valid memberships with the fitness center, and claimed they received the amnesty text messages after their account turned delinquent. Plaintiff’s relationship with YouFit was atypical from the remaining class members on its face, and the Court noted that Plaintiff offered no proof otherwise.

Why not seek substitution of the representative plaintiff, you ask? Plaintiff tried, to no avail. When filing a motion for reconsideration, Powell alternatively moved for leave to substitute. Not only did the Court deny such request, the issuing order reaffirmed the finding that Powell lacked typicality AND went on further to find that the class was not clearly ascertainable, nor did the class satisfy the predominance requirement. Ouch.

The second order, filed on February 21, 2019, explained that both of these subsequent issues tied back to the differences within the putative class. The ascertainable issue (satisfied when the members of a class can be ascertained by reference to objective criteria) failed because different members signed different membership agreements (and in Powell’s case, did a membership agreement even apply if she canceled her membership?). The court held that determining which agreement applied to each plaintiff was a “significant individual inquiry” and Powell did not meet the burden to establish that identification of class members was manageable or administratively feasible for this reason. As for the second issue, the predominance requirement, Powell failed to offer support that the texts she received were the same as the rest of the class, or how the texts differed based on differing membership agreements.

Powell exhibits the responsibility that plaintiff’s counsel has when picking a representative class member. This should not be a game of eenie-meanie-minie-mo. The plaintiff that will present best to the jury, may not be the plaintiff who best defines the issues of the class. (Ted Bundy thought he presented to the jury splendidly too, and look how that turned out.) Instead, the plaintiff should be undoubtedly typical of the class. If he/she is not, Powell shows us that your house of cards will crumble before you can get over the certification hump.

On a (possibly) related note, Plaintiff Traci Powell filed a Notice of Settlement in this case on March 5, 2019, after which the case was dismissed with prejudice.