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Balthazor: Individualized Questions as to Consent Torpedo Attempt to Certify TCPA Class Action

Posted in Class Certification, Predominance

Readers of this blog are likely familiar with the Telephone Consumer Protection Act (“TPCA”), the law that prohibits certain types of calls using an automatic telephone dialing system or prerecorded message. The plaintiffs’ bar has filed numerous class actions seeking statutory damages under the TCPA.  Businesses facing these actions should be alert for opportunities to defend themselves by invoking the TCPA’s exception from liability for calls made with the “prior express consent” of the recipient.  A recent decision, Balthazor v. Central Credit Services, Inc., No. 10-cv-62435 (S.D. Fla.), illustrates how this exception can be used to defeat class certification in TCPA class actions.

The facts of Balthazor follow a common pattern of TCPA and Fair Debt Collection Practices Act (“FDCPA”) litigation. The plaintiff alleges that she received a prerecorded message from a collection agency on her cell phone, in violation of both statutes. (This plaintiff is no stranger to TCPA/FDCPA litigation; she has been the named plaintiff in at least thirteen such suits, and at her deposition in this case noted that she asks her lawyer to listen to all of her voicemails to identify additional possible cases.) Although admitting she may have disclosed her cell phone number to the original creditor at some point, she denies that she consented to such calls. After the FDCPA claims fell out of the case, the plaintiff moved to certify a class of all Florida residents who received calls such as these without their consent.

The defendants opposed class certification on a variety of grounds. The one that resonated with the court was the fact that whether members of the putative class had consented to receiving the challenged calls was an individualized question. The plaintiff had argued that because the burden of proving consent at trial would fall on the defendants, the defendants’ failure to submit evidence at the class certification stage regarding which putative class members had consented meant that the issue of consent was a red herring.  But as the court pointed out, regardless of who ultimately will bear the burden of proof at trial, “at the class certification stage, the burden is on the Plaintiff to establish the Rule 23 factors,” and the defendants had adequately shown that consent would be an individualized issue at trial.

The Court also rejected the plaintiff’s challenge to a prior FCC Declaratory Ruling regarding prior express consent.  In 2008, the FCC concluded that a consumer who provides a phone number to an original creditor consents to receiving autodialed and prerecorded calls at that number. See In re Rules & Regs. Implementing the Tel. Consumer Protection Act of 1991, 23 F.C.C. Rcd. 559, CG Docket No. 02-278 (pdf) (F.C.C. Jan. 4, 2008).  The plaintiff had argued that this ruling “impermissibly amends the TCPA” and was not entitled to Chevron deference.  The district court declined to consider the argument, holding (as have a number of other courts) that this sort of challenge to an FCC Declaratory Ruling must be brought in an appeal of that ruling, not in a separate lawsuit in which the ruling happens to be applied.

Balthazar is a reminder to defendants in TCPA class actions that consent often can be an individualized issue that precludes class certification, so long as the defendant can demonstrate how at least some putative class members would have consented. The decision also stands as a counter-point to the Ninth Circuit’s recent decision in Meyer v Portfolio Recovery Associates, LLC (pdf) (previously discussed here and here), which rejected a similar argument that individualized issues of consent precluded class certification.