Sometimes the best motion is the one you don’t file.

One putative TCPA class representative found that lesson out the hard way. In Powell v. Youfit Health Clubs LLC, Case No. 17-cv-62328, 2019 U.S. Dist. LEXIS 28843 (S. D. Fla. Feb. 21, 2019), on January 14, 2019, a court in Florida denied class certification on the grounds that plaintiff’s TCPA claim was not typical of those of her proposed class. Addressing plaintiff’s motion for reconsideration, the court not only reaffirmed its typicality finding, but also held that plaintiff had failed to demonstrate that the identification of class members is administratively feasible and that common issues of fact predominate. Plaintiff now has three hurdles to overcome if she wants to convince the Eleventh Circuit that the district court erred in refusing to certify a class.

In Powell, plaintiff brought a putative class action against a health club alleging that it violated the TCPA by sending deceptive dual purpose text messages to plaintiff and class members offering balance forgiveness in exchange for a year or six months of membership. Plaintiff claimed that these text messages were nothing more than a marketing ploy sent without consent. Specifically, plaintiff asserted that she canceled her membership and did not have an outstanding balance. Defendant submitted uncontroverted evidence, however, that it only sent its balance forgiveness and amnesty texts to members whose accounts were past due and that plaintiff’s claim that she canceled her membership and, therefore, did not consent to receive such texts was not typical of the claims of other class members who had not canceled their memberships and were subject to the consent provisions of their membership agreements. The court agreed, finding that “[p]laintiff’s claim is indeed unique.”

Plaintiff sought reconsideration, arguing that her TCPA claim was not dependent on the fact that she canceled her membership and that her claim was, therefore, typical of other class members’ claims. The court, however, “remain[ed] unconvinced that [p]laintiff’s claims are typical.” The court found that “proof of the class members’ TCPA claim will turn, at least in part, on the sufficiency of the language contained in the membership agreements, while [p]laintiff’s claim turns on a theory that she provided no consent at all. Thus, proof of [p]laintiff’s claim would not necessarily prove all the proposed class members’ claims.”

But the court did not stop there. It found that even if plaintiff’s claims were typical, it could not certify the proposed class because it was not ascertainable and individual issues of fact predominated over common ones. The court found that plaintiff had failed to propose an administratively feasible way to identify class members because “the only way to identify class membership would be to conduct a review of individual Youfit member records to determine what form of membership agreement each person signed and when.” The court rejected plaintiff’s counter that it could use defendant’s records to come up with a list of potential class members, who could then simply self-identify (such as through affidavits). Quoting the Eleventh Circuit’s decision in Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 948 (11th Cir. 2015), the court found that “a plaintiff cannot satisfy the ascertainability requirement by proposing that class members self-identify . . . without first establishing that self-identification is administratively feasible and not otherwise problematic.”

The court also held that plaintiff had failed to carry her burden of demonstrating that common issues predominated. To the contrary, plaintiff had failed to present evidence that the text messages sent to plaintiff and the putative class were the same or similar, and as previously noted, each class member’s record would need to be examined to determine what form of consent language appeared in the agreement. Thus, the court concluded that “individual issues would predominate over common issues of fact.”

Here, seeking reconsideration did the plaintiff more harm than good. But more importantly for those of us at TCPAworld, the Powell court correctly identified that variances in class member consent records makes identifying appropriate class members impossible and class certification inappropriate.