Well now I’ve seen everything. Yep. Everything.
Yesterday a court in Florida certified a TCPA class action against Pizza Hut and some of its marketing partners/friends/afilliates, whatever, that’s not the point. Because the class consisted of wrong party call recipients the primary issue–for some reason– in the certification proceeding was the ascertainability of the class.
Now I’m already on record saying that ascertainability should rarely prevent certification where predominance has otherwise been clearly demonstrated and objective criteria has been utilized in defining a class–so I’m not usually going to get too bent out of shape over a certification ruling that finds a class ascertainable where Rule 23(b)(3)’s other requirements are carefully and rigorously applied and analyzed. But the incredible adminsitrative plan accepted in Keim v. ADF MidAtlanatic, LLC, Case No. 12-80577, 2018 WL 6333658 (S.D. Fl. Dec. 4, 2018) yesterday leaves me a little cold.
The arguments for and against certifying wrong number TCPA class actions looking at subscriber consent should focus primarily on predominance of common issues in my view– not every third party that received a text is going to have a valid claim because some are going to be authorized (if not regular) users of the cell phone that provided the consent. Thus, individualized issues are going to predominate pretty much every time.
In Kein, for instance, the proposed class is “persons in the United States who received a text message from Defendants wherein their cellular telephone number was provided by a third party and said text messages were sent using hardware and software owned or licensed to Songwhale or Cellit between November 2012 and January 2013.” Ok. Certifying that class gives you a class of a bunch of people who may or may not have received illegal calls depending on the relationship between the third-party and the subscriber–obviously an individualized inquiry. Sometimes the third-party will have authority to provide the number for the purpose of receiving the challenged texts. Sometimes the third party won’t. Some class members will have valid claims. Some won’t No “single stroke” resolution of liability. So class shouldn’t be certified.
But what do I know.
Well the Keimn court certified that class–with some modification I discuss below. But the key point here is the ascertainability plan. My goodness is it weird looking.
Real quick: in the Eleventh Circuit district courts (probably) have to follow the “administrative feasability” test for ascertaining class members in the Rule 23(b)(3) setting. I say probably because there is no published Eleventh Circuit decision adopting that test but there are two unpublished cases that do. (We’ll see if BCA’s effort at an interlocutory appeal on that issue gets accepted in Bad Reyes.)
So here’s the plan the Court approved in Keim to administer the class:
- (1) use the data provided by Defendants, which lists the cellular telephone numbers that received the text messages in question and the associated phone carriers;
- 2) subpoena the phone carriers for their records as to the names and addresses of the subscribers (and users, if available) of those telephone numbers during the relevant time frame;
- (3) in cases of group plans where the carriers do not retain records of the users of each line (Czar Note: that’s virtually all of them folks), send the notice to the subscriber’s address to the attention of the user of the cellular phone number;
- and (4) use reverse lookups for any subscriber information not retained by the carriers. (Id.; Pl.’s Reply 4-5, ECF No. 219 at 9-10.)
So the plan to administer the class by treating every user of a phone on a group or family plan as a presumptive class member and to order notice to be sent to the subscriber to that plan and… hope the susbcriber notifies the users of the phone about the class?
What in the world.
And in order to get there, the Plaintiffs must first subpoena the records of every carrier for the names and users of every subscriber to every phone that received the text and then (presumably) compare those to the records of consent that the Defendant maintained to ascertain whether or not that was the person who provided the number. (The ascertainability plan left out this last and crucial step BTW.)
So let’s keep this in mind folks. Any user of a cell phone that received a text from Pizza Hut over the last four years is now about to get their phone records searched via subpoena by class counsel in this case. Those on a family plan will soon have a notice sent to the subscriber to that plan regarding their use of the phone. And then the susbcriber is supposed to notify those users of the class notice. (Does this create some sort of duty on subscribers of family plans to convey class notice to users? Oh the possibilities here are endless.)
Notably the Court accepts Robert Biggerstaff’s opinion that “many of the carriers provide[ ] a way for [customers] to assign names to the multiple phones on an account.” And based upon this opinion that “many” carriers allow subscribers to assign names to shared phone lines the Court accepts Plaintiff’s argument that “the vast majority of users will be identified via the carrier subpoenas.” Keim at *7.
Both parties recognized, however, that user information will be unavailable from the carriers for some (in Plaintiff’s view) or virtually all (in Defendant’s [correct] view) circumstances. And the Court very starkly tees up this issue and the proposed solution as follows:
For those accounts where the carrier did not provide a feature allowing subscribers to assign users to the numbers on the account or where the subscriber declined to participate in it, Defendants contend that “[identification] is impossible.” (Defs.’ Resp. 11, ECF No. 211 at 22.) In response, Plaintiff offers a simple solution: ask the subscriber.
Keim at *7
Without any further analysis of the issue like–what questions will the subscriber be asked? what if the subscriber doesn’t look at the form? what is the subscriber sees the form but doesn’t answer? Are we asking the subscriber to violate privacy of users?–the Court simply concludes that Plaintiff’s “simple solution” is perfectly appropriate: “because non-subscribing user identification information can be obtained from the phone carriers or through inquiry from the individual subscriber, the Court finds that Plaintiff’s plan for identifying the class members is administratively feasible.” Id.
But even assuming that users of numbers that received texts can be determined using this method–huge assumption– how can you determine which ones of those users did or did not provide the number to the caller? The Court seems to assume that merely identifying users of phones equates with identifying users of phones that did not consent. But how in the world is that a valid assumption?
Unrelated, is there a head-exploding emoji out there?
With an administration plan this… provocative… it won’t surprise anyone to hear that the remainder of the court’s analysis on Rule 23(b)(3) also skews away from the pack. As I explained above, the key issue here is commonality. Again, a caller can rely on the consent of a subsriber or anyone that was authorized to use a phone paid for by the subscriber. So, again, in the super common shared plan scenario the regular users of those phones can provide their numbers to potential callers and those callers can rely on that consent. So while it is true that some class members might have valid claims, the vast majority presumably would not–assuming the defendant maintained decent policies and procedures–because the texts were presumably sent to numbers presumably provided by users of those group plans. (Part of the issue is the non-objectively defined termed “received”– is that limited to subscribers that ‘received” calls and texts or does it include third-party users that “received” texts or any individual that was holding the phone when the text came in? Can’t tell? Not objectively defined. But again, what do I know.) (Also, notice what class counsel is doing here–they are leveraging the fact that so many people use group plans to create a huge class of “non-consenting subscribers” even though the vast majority of those “non-consenting subscribers” do not have valid TCPA claims. That’s really gross, in my opinion.)
But the Court does not appear concerned that subscribers may be bound to receive texts that authorized users of phone lines on their plan ask for. Instead the Court seems focused on the mirror opposite of this scenario– situations where regular users of a phone receive a text that the subscriber authorized. So the Court carves out the following individuals from the class: “Excluded from the class are persons who received a text message from Defendants wherein their cellular telephone number was provided by a subscriber of the calling plan.” Keim at *9.
That seems to solve one tiny portion of the overall problem. Subscribers providing consent for third-parties to text users of a cell phone is an issue but a very small one. (How often does the subscriber to your group plan supply your number to callers? Not very often I’m guessing.)
In any event, this article runs long and the bottom line is this: if you are focusing on ascertainability in your briefing seeking to defeat certification you are likely barking up the wrong tree. If a court is convinced there is a valid class of individuals that received unlawful texts or robocalls that are in a common position to one another the Court will find a away to administer that class– no matter how bad a plan it may seem. Consider holding your fire on ascertainability and making your predominance arguments crystal clear. You may find–as we have–that when the Court really understands the difference in the class member’s circumstances on the crucial issue of consent the problem with ascertaining class members that truly didn’t consent become obvious.
Good luck out there folks.