On March 7, 2016, the U.S. District Court for the Southern District of Ohio denied class certification in a TCPA case brought against ADT for alleged use of prerecorded telemarketing calls placed by one of ADT’s licensed dealers, Security Solutions, Inc. (“SSI”).  Barrett v. ADT Corp., No. 2:15-cv-1348, 2016 U.S. Dist. LEXIS 28767 *1-3 (S.D. Ohio Mar. 7, 2016).  The denial was based on both a lack of ascertainability and the failure to meet Rule 23(b)(3)’s commonality requirements.

With respect to ascertainability of the class, the Court assumed arguendo that: 1) “ADT—through its authorized dealers—did in fact violate the TCPA for some portion of the 13.8 million calls it allegedly placed during the proposed class period; and 2) ADT can be held vicariously liable for those violations.” Id. at *22-23.  But, despite these assumptions, the Court held that there was no way for the parties or the Court to ascertain which calls were actionable under the TCPA without undergoing extensive, individualized fact-finding as to which call recipients gave prior consent for ADT or its vendors to contact them.

For similar reasons, the Court found that Plaintiff could not satisfy Rule 23(b)(3)’s commonality requirements.  While recognizing that common issues existed with respect to “whether the technology used to make the telephone calls violated the TCPA and whether ADT can be held vicariously liable for an authorized dealer’s action under the TCPA,” the Court held that the individualized question as to prior consent overwhelmed the common issues.  Id. at *23, 26.  In reaching this conclusion, the Court found that because consent could be obtained from one of ADT’s marketing partners or one of its 300 independent dealers, “it is possible – if not likely – that ADT does not possess any record of such consent, but that does not mean that consent has not been given.”  Id. at *27.  “The only way to locate a call recipient’s possible consent is to conduct a ‘mini-trial’ for each individual.”  Id. Consequently, the Court ruled that the common questions would pale in comparison to the time and resources spent trying to determine whether each putative class member had previously consented to ADT contacting them.

Notably, this decision followed a similar holding in a TCPA lawsuit brought against ADT involving the same counsel and nearly identical facts, in which class certification was also denied.  Fitzhenry v. The ADT Corp., No. 14-80180, 2014 U.S. Dist. LEXIS 166243 (S.D. Fla. Nov. 3, 2014).  While the Southern District of Ohio in Barrett stated that it was not “blindly adhering” to the Fitzhenry decision, the Court did find “significant value” in Judge Middlebrooks’ prior "well-reasoned decision.”  Barrett, 2016 U.S. Dist. LEXIS, at *20.