Consumer Finance Litigation

In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 1283881, 11-cv-61357 (S.D. Fla. March 26, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida certified a Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii), and Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692e(11) and 1692d(6), class action over the objection of the Defendant. The Defendant objected to the Plaintiff's standing on both Article III constitutional grounds and based upon the alleged lack of statutory standing under the TCPA. The Defendant contended that the Plaintiff lacked Article III standing because the Plaintiff had failed to allege actual damages. However the Court held that "a plaintiff suffers an injury under Article III whenever there is a violation of a legally protected interest, and the requisite injury 'may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.'" Id. at 3 (quoting Thorne v. Accounts Receivable Mngmt., Inc., 2012 WL 3108662, at 6 (S.D.Fla. July 24, 2012)). The Defendant further objected to Plaintiff's statutory standing on the grounds that the cellular phone number called was registered to the Plaintiff's wife, which the Defendant argued placed the Plaintiff outside of the TCPA's definition of "called party." The Defendant argued that only a "called party" was authorized by the TCPA to sue for a violation. However, the Court held that statutory standing under the TCPA was not limited to a "called party," holding that "the standing provision of the TCPA is quite broad in that any 'person or entity' injured by a violation of the statute may seek redress; standing is not expressly limited to the 'called party.'" Id. at 4. The Court further held that the Plaintiff "need not be 'charged for the call' in order to have standing to complain." Id. As to class certification, the Defendant objected on each of the various class certification elements. While the Defendant objected that the Plaintiff had failed to demonstrate sufficient numerousity, the Court held that after a protracted discovery dispute, the Plaintiff had secured discovery of facts which suggested thousands of potential class members. Defendants also objected to adequacy on the grounds that the class representative waited two years to bring his claim, thus potentially letting the statute of limitations run on other class members' claims, though no such time-barred putative class members were identified. The Court held that in the absence of evidence identifying such potentially time-barred class members, the class representative was adequate. Of more interest was the Court's ruling on the commonality, typicality, predominance, and superiority elements. The Court cited Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318, 327-28 (5th Cir. 2008) in noting that "the issue of consent under the TCPA may, or may not, be individualized and it may, or may not, defeat certification, depending on the facts of the particular case." The Defendant argued that since consent is the principal defense to a purported TCPA violation and hinges upon facts specific to each class member, such facts were not common to each class member and would require individual determination. Thus, warranting separate trials and denial of class certification. However, the Court held that: "Here, the Magistrate Judge required the Defendants to conduct class discovery on numerosity and to specifically identify only those accounts where [Defendant's] records showed that the called party did not communicate in any way with [Defendant] prior to [Defendant's] automated call. Obviously, if the putative class members did not communicate with [Defendant] before [Defendant] called them, there is no way those class members could have provided consent to [Defendant]. Thus, the way in which the discovery was performed weeded out the individuals who had previously contacted [Defendant] and; thus, weeded out those individuals who may have consented to be called. As such, the Court will not have to inquire as to whether each putative class member may be subject to an independent consent defense. This serves to distinguish those cases where judges have denied certification on the ground that the issue of consent defeats commonality." Id. at 8. The Court held that even if tendering to Defendant the phone number, which was eventually called in alleged violation of the TCPA, might result in a consent defense (though the Court declined to rule at this stage on the merits of such a consent defense), that this did not defeat commonality or typicality as those facts were subject to common resolution and typical to each class member as each had provided their phone number to the Defendant in "the same or similar" circumstances (i.e. during their admission for medical treatment). The Court further held that the class discovery weeded out those who had direct communications with the Defendant before the alleged TCPA violations which might have contained other prior communications of express consent. The Defendant also alleged that the class action was not a superior form of resolution because the potential class damages were grossly out of proportion with any actual damages suffered by the class. However, the Court held that since Congress provided for the statutory damages and had not capped them for class actions, there was no basis to argue that the potential damages award was disproportionate, since "proportionality does not change as more plaintiffs seek relief; indeed, the size of [a defendant's] potential liability expands at exactly the same rate as the class size." Id. at 14 (citing Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 719 (9th Cir. 2010)). The Court further held that the unconstitutionality of any such potential award was more properly made the subject of a future hearing, and not at class certification. Id. at 15. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.