Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Class certification vetoed in Obama for America TCPA suit, (Apr 28, 2015)

By Greg Hammond, J.D.

A Florida consumer was denied class certification in a suit alleging that Obama for America and DNC Services Corporation, also known as the Democratic National Committee (DNC), violated the Telephone Consumer Protection Act (TCPA) by calling voters’ cell phones with auto-dialed calls and pre-recorded messages. The federal district court in Tampa determined that the consumer failed to set forth questions of law or fact common to the class, that injunctive relief would be proper, that questions common to class members predominate over individual questions, or that a class resolution is superior to other methods of adjudication (Shamblin v. Obama for America, April 27, 2015, Covington, V.).

Background. Lori Shamblin filed a putative class action against Obama for America in September 2013, alleging violations of the TCPA. Shamblin asserted that she received two unsolicited auto-dialed telephone calls paid for by Obama for America to her cellular telephone that left pre-recorded messages on her voicemail system. In 2014, Shamblin was granted leave to amend her complaint to add the DNC and New Partners Consulting, Inc. as defendants, alleging that the DNC and New Partners assisted and participated in the calling of voters’ cell phones, urging recipients to vote for Barrack Obama in the 2012 presidential election.

Shamblin moved to certify a class, to stay case management deadlines, and to strike a declaration. Conversely, the DNC, Obama for America, and New Partners jointly moved to exclude expert reports.

Expert testimony, declarations. The court first determined that the testimony offered by Shamblin’s two experts was admissible because the experts were deemed amply qualified; their relevant experience, education, and training rendered them competent to offer expert testimony in TCPA cases; they employed reliable methodologies; and they are in a position to substantially assist the trier of fact. The motion to exclude Shamblin’s experts was therefore denied.

Similarly, Shamblin’s motion to strike the declaration of Jerry Samargia, a shareholder of New Partners, was denied. Samargia’s declaration described a survey in which New Partners called various phone numbers that Shamblin claimed are cell phone numbers that were illegally robocalled. The implication of the survey is that the alleged cell phone numbers are not actually assigned to cell phones. The court declined to strike the declaration on hearsay grounds, noting that evidence rules were relaxed, since a determination on class certification is made by the court, not a jury. Nevertheless, the court found that the declaration would be admissible under the business records and residual hearsay exceptions.

Class certification. With regard to the motion for class certification, the court first found that Shamblin satisfied the numerosity requirement of Federal Rule of Civil Procedure 23(a) because whether there are over 70,000 class members as Shamblin claims, or only 1,073 class members as the defendants claim, either number is sufficient for numerosity purposes.

The court, however, found that there could never be common answers to questions of whether: (1) the telephone number dialed was assigned to a cell phone at the time of the call and (2) whether the subscriber consented to be called. Individualized proof would be required for each and every plaintiff, the court found, noting that this alone defeated class certification.

Nevertheless, the court continued its discussion of class certification, finding that Shamblin’s claims were typical because she alleged she has suffered from the same illegal acts and has the same claim for relief under the TCPA as each proposed class member. In addition, both class counsel and Shamblin were deemed adequate to represent the proposed class members.

Shamblin could not demonstrate that an injunction was a proper remedy, the court found, because Obama for America cannot be enjoined from an activity that will not take place in the future, such as reelection for a third term. In addition, individual inquiries into consent would predominate over any class claims because evidence will need to be submitted to demonstrate that each class member gave oral, written, electronic, or other means of consent to receiving the telephone calls at issue. Further, class wide resolution of the dispute would not be superior to other methods of adjudication, given the individual issues concerning consent. The motion for class certification was therefore denied.

The case number is 8:13-cv-2428-T-33TBM.

Attorneys: Andrew L. Quiat (Andrew L. Quiat, PC) for Lori Shamblin. Dale Thomas Golden (Golden Scaz Gagain, PLLC), Debra R. Bernard (Perkins Coie, LLP), and Gregg Darrow Thomas (Thomas & LoCicero, PL) for Obama for America and DNC Services Corp.

Companies: Obama for America; DNC Services Corp.

Cases: Advertising Privacy FloridaNews