Finding a lack of typicality, a Florida federal court denied class certification to a plaintiff suing a gym over text messages.
Traci Powell claimed that YouFit Health Clubs violated the Telephone Consumer Protection Act (TCPA) by sending her two text messages four years after she canceled her membership and paid her outstanding balance. One message read: “YOUFIT BALANCE FORGIVENESS: Get 1 year for $99, or 6 months for $49, to clear your past due balance. Call 561-472-1622 for details.” The second text message had the same message but with a different phone number.
According to Powell’s complaint, the messages were really a marketing ploy and sent without her consent. She filed suit and moved to certify a class of recipients defined as “[a]ll persons in the United States who (1) entered into a YouFit membership agreement prior to December 30, 2015, (2) were subsequently sent a text message by YouFit pursuant to YouFit’s ‘Amnesty Program,’ (3) using the CallFire text messaging platform, (4) during the time period of November 29, 2013 to November 29, 2017.”
The gym objected, arguing that Powell failed to meet all the requirements of Federal Rule of Civil Procedure 23(a) to establish a certifiable class.
Denying the motion, U.S. District Judge Beth Bloom agreed. While the court found that Powell satisfied the numerosity requirement (with an estimated 107,879 potential class members), the adequacy requirement and the commonality requirement (with several relevant common issues, including whether the texts constituted telemarketing for purposes of the TCPA and whether the messages were “dual purpose communications”), she could not overcome the typicality requirement.
“YouFit presents evidence, which is uncontroverted by Plaintiff, that the only individuals who were sent the offending text messages pursuant to YouFit’s ‘Balance Forgiveness’ or ‘Amnesty Program’ were members whose accounts were past due,” the court said. “While Plaintiff contends that she had canceled her membership months before she received YouFit’s text messages, Plaintiff points to no evidence tending to show that YouFit was aware that she had canceled and was no longer a member.”
The court noted that Powell’s claim was therefore unique because she believed her membership had been canceled when she received the text messages.
“By contrast, the class she seeks to represent would be composed of YouFit members whose accounts were delinquent,” Judge Bloom wrote. “Plaintiff points to no evidence that any of the purported class members received text messages from YouFit under similar circumstances.”
Finding that the plaintiff failed to satisfy the typicality requirement, the court denied the motion to certify a class.
Powell then asked the court to reconsider its decision on class certification. Not only did Judge Bloom deny the motion for reconsideration, she found additional reasons for doing so.
The plaintiff argued that her TCPA claim—and the claim of the class—was not dependent on whether she actually canceled her membership. But the court explained that proving the facts of Powell’s claim would not necessarily prove all of the proposed class members’ claims.
“Upon review, the Court remains unconvinced that Plaintiff’s claims are typical,” the court wrote. “Plaintiff’s claim as pled, unlike the class’s, depends upon the position that she was no longer a member of YouFit, and therefore not bound by any form of membership agreement containing any consent language.”
The court also determined that the class was not ascertainable, agreeing with YouFit that Powell had failed to provide a reliable or administratively feasible way to identify which individuals who became YouFit members prior to December 30, 2015, actually entered a membership agreement before that date.
Judge Bloom thus concluded that “identification of class members would require significant individual inquiries.” “This is principally 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 concluded that Powell similarly failed to satisfy her burden of predominance, as other than the content of the text messages, she “has not offered support for her contention that the text messages sent to class members were the same or similar.” “Moreover, as already noted, examination of each member’s record would be necessary in order to determine what form of consent language appeared in the agreement of any given class member. As pointed out by YouFit, one member may have signed multiple forms of membership agreements containing different consent language.”
Why it matters: The plaintiff faced a double loss with the two denials of her request for class certification. In addition to finding a lack of typicality of claims among the proposed class members, the court made it clear that in order to satisfy the ascertainability requirement, a plaintiff must provide a means to identify class members that is administratively feasible and not otherwise problematic.