On November 15, the Eleventh Circuit vacated an order certifying a class of individuals who claimed to have received robocalls in violation of the Telephone Consumer Protection Act (“TCPA”), holding that the district court failed to consider individualized standing issues in determining whether common class issues predominated.
- Plaintiffs sued DIRECTV, claiming it violated the TCPA by failing to maintain internal “do-not-call” lists and subjecting class members to unwanted telemarketing calls. The Northern District of Georgia certified a class of all individuals who received multiple calls during the relevant time period, regardless of whether class members asked not to receive calls. The Eleventh Circuit granted interlocutory review under Rule 23(f) to decide whether class members who did not ask to be on the caller’s do-not-call list had standing.
- On appeal, the Eleventh Circuit first rejected DIRECTV’s argument that class members could not show an injury in fact—the first prong in the Article III standing analysis. The court held that “[t]he receipt of more than one unwanted telemarketing call made in violation of the provisions enumerated in the TCPA is a concrete injury that meets the minimum requirements of Article III standing.”
- The panel distinguished its holding from the recent decision in Salcedo v. Hanna—discussed in the September edition of Predominant Issues—in which the Eleventh Circuit held that receipt of a single unsolicited text does not qualify as an injury in fact. The panel reasoned that a phone call is more akin to a fax than a text and may be more intrusive, given that a ringing phone requires immediate attention and may cause the recipient to bear the cost of increased minutes.
- The Eleventh Circuit concluded, however, that certain absent class members may not be able to show that their alleged injuries were “fairly traceable” to DIRECTV’s alleged misconduct—the second prong of the Article III analysis. Namely, absent class members “who did not ask DIRECTV to stop calling them—and thus would not have been on the internal do-not-call list, even if it had existed and had been maintained perfectly—were not injured by the failure to comply with the regulation.”
- Thus, the court reasoned, determining whether absent class members asked for the calls to stop “requires an individualized inquiry”—an issue the district court did not consider when it determined that common issues predominated. The district court, therefore, “abused its discretion in certifying the class as it is currently defined” because “many, perhaps most, members of the class may lack standing.” Accordingly, the Eleventh Circuit vacated the certification order and remanded it for further consideration of the standing issue.
- The decision is likely to have significant implications for class actions in the Eleventh Circuit in which a non-trivial portion of the class may have suffered no injuries (or at least none attributable to the defendant’s alleged misconduct). The court made clear that standing concerns are not limited to the named plaintiff’s claims but may also impact the viability of class certification, since “at some time in the course of the litigation the district court will have to determine whether each of the absent class members has standing before they could be granted relief.”
- The case is Cordoba v. DIRECTV, LLC, and the opinion is available here.
