Perfect Appellate Vehicle?: “Bad Reyes” TCPA Defendant Seeks Interlocutory Appeal Testing Eleventh Circuit’s Ascertainability/One-Way Intervention Standards

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BCA Financial Services, Inc. filed a well-supported petition to the Eleventh Circuit today, seeking an interlocutory appeal from the district court’s order certifying the case a against it in Reyes v. BCA Fin. Servs., No. 16-24077-CIV, 2018 U.S. Dist. LEXIS 106449 (S.D. Fla. June 26, 2018). If the appeal is accepted it will create a vehicle for the Eleventh Circuit to issue its first published ruling on the “ascertainability” standard and will also afford review of the district court’s seeming violation of the one way intervention doctrine.

The “Bad Reyes” saga has been well-recounted on TCPAland–check here if you want background— and an appeal to the Eleventh Circuit seems like a fitting end for the tale. The interlocutory appeal bid is brought pursuant to Rule 23(f) and the Eleventh Circuit’s version of the “death-knell” rule.

To support the interlocutory appeal bid BCA challenges two components of the certification order:

  1. That the court misapplied the “administrative feasability” test articulates in the Eleventh Circuit’s unpublished opinion in Bussey v. Macon Cty. Greyhound
    Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014) (unpublished); and
  2. That the court violated BCA’s protections against one-way intervention.

The test on ascertainability grounds is really important for folks practicing class litigation in the Eleventh Circuit. While most class litigants–including me–assume and govern themselves as if the administrative feasability test is the law of the land in the Eleventh Circuit, technically that court has yet to issue a binding decision to that effect. Of note, the Ninth Circuit and Seventh Circuit Courts of Appeal have recently rejected ascertainability as an implied requirement of Rule 23 in favor of a stricter objective-definition requirement. (I’ll nerd out on this issue for you folks another day–its Friday!) And even the Third Circuit–that invented the administrative feasability test–seems to have recently backed away from it in City Select.  So a lot will turn on this appeal–if it is accepted. Will the Eleventh Circuit stem the ascertainability tide, or will Greenwald add yet another big tally mark to the consumer bar’s ledger? 

The one-way intervention issue is also extremely interesting. As I broke down the other day, in rejecting BCA’s motion for reconsideration the Reyes court essentially found that it had the discretion to disregard the U.S. Supreme Court’s prohibition on granting certification after issuing a substantive merits determination in favor of a class.  Reyes relied on loosely-supportive Eleventh Circuit authority to support its ruling, but there were some holes in the reasoning that should give BCA sturdy hope on appeal. If the Eleventh Circuit does take up the appeal it will be the cleanest example of a violation of a Defendant’s one way intervention it has ever considered–which makes this case an excellent candidate for interlocutory appeal consideration.

We’ll keep you posted folks. The brief can be found here: Reyes Petition for Permission to Appeal Omnibus Order Granting Motion to Certify Class Rule 23(f) (2)

Have a great weekend TCPAland!

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