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Sliwa v. Bright House Networks, LLC

United States District Court, M.D. Florida, Fort Myers Division

September 27, 2019

STEPHAN H. SLIWA, individually and on behalf of all others similarly situated, Plaintiff,
v.
BRIGHT HOUSE NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., Defendants.

          OPINION AND ORDER

          JOHN E. STEELE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on two motions: Plaintiff's Motion for Class Certification[1] and defendants' Motion to Exclude Plaintiff's Expert Robert Biggerstaff[2]. The parties have also filed multiple Notices of supplemental authority and responses (Docs. ##198, 208, 210, 211, 221, 234, 235, 236, 239, 242, 243, 244, 246, 255, 258, 262, 263, 266, 270, 271, 272, 273, 277, 279, 280.) Defendants filed a Request for Oral Argument (Doc. #228), joined in by plaintiff (Doc. #240), and the Court heard oral arguments on May 24, 2019.

         For the reasons set forth below, both motions are denied.

         I.

         On January 30, 2017, Plaintiff Stephan H. Sliwa (Plaintiff) filed a five-count Amended Class Action Complaint (Doc. #46) against defendants Bright House Networks, LLC (Bright House) and Advanced Telesolutions, Inc. (ATS) (collectively, Defendants), alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq. (Counts I and III), the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et seq. (Counts II and IV), and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. (Count V). The Amended Complaint alleges that Defendants attempted to collect a consumer debt of unspecified nature and origin by calling Plaintiff's cellphone without his consent and/or after any consent had been revoked, using an automatic telephone dialing system and/or prerecorded voice technology. While the Amended Complaint does not say so, the record establishes that Plaintiff received calls intended for a Bright House customer at a telephone number given to Bright House by that customer which had subsequently been reassigned to Plaintiff's cellphone.

         The Court takes the following background facts relevant to class certification from the Amended Complaint and the evidence submitted by the parties[3]:

         From 2011 through 2015[4], Bright House provided cable, internet, and phone services to customers in several states under the Bright House brand pursuant to its Residential Subscriber Agreements (RSAs). (Docs. #164, p. 8[5]; #165-1, p. 2.) Under the RSA, Bright House's customers agreed that Bright House and its vendors could call “the phone numbers . . . suppl[ied] to it for any purpose [via] any method, including an automatic dialing system or an artificial or recorded voice.” (Doc. #164, p. 8.) Additionally, Bright House was “entitle[d to] assume that any communications made through [a subscriber's] Services or from the location at which [the subscriber] receive the Services are [the subscriber's] communications or have been authorised by [the subscriber].” (Id., pp. 8-9.) Customers provided telephone numbers to Bright House at various times and in various ways, and should have, but did not always, update any change in their phone numbers. (Id.) Also, the RSA provided for the arbitration of disputes on an individual (non-class) basis, subject to an opt-out right. (Id.)

         Bright House asserts that Customer H signed up for its services and provided it with a telephone number ending in “2025” (the 2025 Number) as a home telephone number at which Customer H could be contacted. (Id., pp. 11-12.) In 2014 and 2015, Customer H confirmed the 2025 Number as the accurate contact telephone number. (Id.) Contrary to these assurances, in February 2013, Plaintiff had been assigned the 2025 Number for his cellphone. (Id.)

         The Amended Complaint alleges that on February 1, 2015, Plaintiff began receiving debt-recovery calls from Bright House/ATS at the 2025 Number. (Doc. #46, ¶ 28.) Shortly thereafter, Plaintiff demanded that both Bright House and ATS stop calling his cell phone number. (Id., ¶ 29.) The Amended Complaint states that “Plaintiff expressly revoked any express consent Bright House may have mistakenly believed it had for placement of telephone calls . . . .” (Id., ¶ 30.) Despite revoking consent to receive such calls, “Defendants continued [their] barrage of phone calls to Plaintiff's [] cellular telephone number in an attempt to collect a debt.” (Id., ¶ 36.) Either “at least one, ” or “numerous, ” or “each” call was made by an automatic telephone dialing system (ATDS). (Id., ¶¶ 37-42.) Plaintiff asserts in the Amended Complaint that each call used a “prerecorded voice” (PRV). (Id., ¶ 43.) Plaintiff states that Defendants called him at least fourteen times after being told they had the wrong number. (Doc. #157, p. 5.)

         Plaintiff seeks to certify two nationwide classes, asserting he has satisfied all the requirements for such class certification. Defendants oppose the request for class certification, arguing that: (1) The proposed class definitions are broader than those in the Amended Complaint, are being proposed for the first time after the close of discovery, and are hopelessly vague; (2) there is no feasible administrative way to identify even a fraction of the members of the proposed classes; (3) there are a host of individualized inquires which will predominate over any common questions at trial, including the all-important issue of consent or lack of consent; (4) Plaintiff has failed to satisfy any of the remaining requirements of Rule 23 of the Federal Rules of Civil Procedure for class certification; and (5) Plaintiff and his counsel are inadequate representatives of the classes in part because of a conflict of interest created by their engagement agreement, which prohibits Plaintiff from settling or dismissing the case against counsel's advice even if in his best interest or the best interest of the classes. At oral argument, counsel for Defendants identified fourteen (14) or fifteen (15) grounds they asserted were each independently sufficient to deny class certification. (Doc. #260.)

         II.

         The Court will first briefly summarize the pertinent legal principles relating to the TCPA and to class certification.

         A. The TCPA

         Congress passed the Telephone Consumer Protection Act to balance “[i]ndividuals' privacy rights, public safety interests, and commercial freedoms of speech and trade.” Tel. Consumer Prot. Act of 1991, Pub. L. No. 102-243, § 2(9) (1991). The TCPA prohibits “any person . . . [from making] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii); see also Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1266 (11th Cir. 2014) (The TCPA “makes it unlawful to make any call using an automatic telephone dialing system (an ‘autodial system') to a cellular telephone without the prior express consent of the ‘called party.'”).

         The TCPA also created a private right of action that allows a person to seek an injunction or monetary damages based on a violation of § 227(b) or a regulation promulgated thereunder. 47 U.S.C. § 227(b)(3). For each violation, a plaintiff can recover the greater of their actual monetary loss or $500. 47 U.S.C. § 227(b)(3)(B). Up to treble damages are available if the defendant committed a violation willfully or knowingly. 47 U.S.C. § 227(b)(3)(C); see also Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1117 (11th Cir. 2014).

         “One of the key concepts in § 227(b)(1)(A)(iii) is consent.” Schweitzer v. Comenity Bank, 866 F.3d 1273, 1274 (11th Cir. 2017). Consent by the called party is an exception to the general rule that such calls violate the TCPA, and must be established by the caller who asserts consent. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1253 (11th Cir. 2014)(“To fall within § 227(b)(1)(A)(iii)'s consent exception, State Farm must demonstrate that it had the consent of Osorio, as defined by the common law, to call No. 8626.”); see also Latner v. Mount Sinai Health Sys., Inc, 879 F.3d 52, 54 (2d Cir. 2018)(“Prior express consent is an affirmative defense to liability under the TCPA.”); Daubert v. NRA Group, LLC, 861 F.3d 382, 390 (3d Cir. 2017)(“As the party claiming Daubert's ‘prior express consent' NRA would've been required to prove it at trial.”); Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2017)(“Express consent is an affirmative defense on which the defendant bears the burden of proof.”); Van Patten v. Vertical Fitness Group, 847 F.3d 1037, 1044 (9th Cir. 2017)(“Express consent is not an element of a plaintiff's prima facie case but is an affirmative defense for which the defendant bears the burden of proof.”).

         Such “prior express consent” must be given by the “called party.” 47 U.S.C. § 227(b)(1)(A)(iii). The “called party” means the subscriber to the cellphone service, not the intended recipient of the call. Osorio, 746 F.3d at 1251-52; Breslow., 755 F.3d at 1267. “Prior express consent” is not defined in the TCPA statute, but has been discussed by the Federal Communications Commission (FCC) in its regulations. See e.g. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992); In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008). In 2014, the FCC clarified that “the scope of [an individual's prior express] consent must be determined upon the facts of each situation.” Matter of GroupMe, Inc./Skype Commc'ns S.A.R.L Petition for Expedited Declaratory Ruling Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 29 F.C.C. Rcd. 3442, 3446 (2014).

No specific method is required under the TCPA for a caller to obtain prior consent to place automated calls or to subsequently revoke that consent. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 FCC Ruling), 30 FCC Rcd. 7961, 7990. Accordingly, we recently concluded that “Congress sought to incorporate ‘the common law concept of consent'” into the TCPA.”

Lawrence v. Bayview Loan Servicing, LLC, 666 Fed.Appx. 875, 879 (11th Cir. 2016)(citing Osorio, 746 F.3d at 1256). In the Eleventh Circuit, consent may be orally revoked, Osorio, 746 F.3d at 1255, and may be partially revoked. Schweitzer, 866 F.3d at 1274. “The requirement of ‘willful[ ] or knowing[ ]' conduct requires the violator to know he was performing the conduct that violates the statute.” Lary v. Trinity Physician Fin. & Ins. Services, 780 F.3d 1101, 1107 (11th Cir. 2015).

         B. Class Certification Principles

         The Eleventh Circuit has summarized the relevant law governing class certification as follows:

Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is “adequately defined and clearly ascertainable.” DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)1; cf. John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The existence of an ascertainable class of persons to be represented by the proposed class representative is an implied prerequisite of Federal Rule of Civil Procedure 23.”)
If the plaintiff's proposed class is adequately defined and clearly ascertainable, the plaintiff must then establish the four requirements listed in Federal Rule of Civil Procedure 23(a). Those requirements are:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
e.g., Valley Drug Co. v. Geneva Pharm., Inc.,
In addition to establishing the Rule 23(a) requirements, a plaintiff must also establish that the proposed class satisfies at least one of the three requirements listed in Rule 23(b). Fed.R.Civ.P. 23(b); Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000). In this case, the plaintiffs are pursuing certification under the third alternative requirement, Rule 23(b)(3). Rule 23(b)(3) permits class certification if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3) (emphasis added); see Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011).

Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012); see also Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016).

Additionally,
[t]he party seeking class certification has the burden of proof. And the entire point of a burden of proof is that, if doubts remain about whether the standard is satisfied, the party with the burden of proof loses. All else being equal, the presumption is against class certification because class actions are an exception to our constitutional tradition of individual litigation. A district court that has doubts about whether the requirements of Rule 23 have been met should refuse certification until they have been met.

Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1233-34 (11th Cir. 2016)(internal punctuation and citations omitted).

         Thus, a plaintiff seeking class certification

must affirmatively demonstrate his compliance with Rule 23 by proving that the requirements are in fact satisfied. And the district court must conduct a rigorous analysis to determine whether the movant carried his burden, which will frequently entail overlap with the merits of the plaintiff's underlying claim. Of course, the district court can consider the merits only to the extent they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. But if a question of fact or law is relevant to that determination, then the district court has a duty to actually decide it and not accept it as true or construe it in anyone's favor.

Id. (internal punctuation and citations omitted).

         III.

         The context of this case is summarized as follows:

While there is no consensus about the exact numbers of reassignments, there is no dispute that millions of wireless numbers are reassigned each year. In the event of a reassignment, the caller might initiate a phone call (or send a text message) based on a mistaken belief that the owner of the receiving number has given consent, when in fact the number has been reassigned to someone else from whom consent has not been obtained.
Does a call or message in that situation violate the statutory bar against making autodialer calls without prior consent?

ACA Int'l v. Fed. Communications Comm'n, 885 F.3d 687, 705 (D.C. Cir. 2018).

         The Court addresses Plaintiff's evidence regarding each requirement for class certification, and Defendants' objections, in turn.

         A. Adequately Defined Classes

         Plaintiff seeks to certify the following two classes in connection with the two TCPA counts:[6]

ATDS Class
(1) All persons in the United States (2) who are not a customer of either defendant (3) to whose cellular telephone number [4] Defendants placed at least one non-emergency telephone call [5] using substantially the same dialing system(s) they used to telephone Plaintiff [6] within the 4 year period preceding the filing of the complaint [7] after Defendants had already documented the number as a wrong number in their records
Prerecorded Voice Class
(1) All persons in the United States (2) who are not a customer of either defendant (3) to whose cellular telephone number [4] Defendants placed at least one non-emergency telephone call [5] using a prerecorded voice [6] within the 4 year period preceding the filing of the complaint [7] after Defendants had already documented the number as a wrong number in their records.

(Doc. #157, pp. 8-9.)[7] Only element (5) is different for the two proposed classes.

         For a class to be certified, the Eleventh Circuit requires that the proposed class be “adequately defined.” Little, 691 F.3d at 1303; Karhu v. Vital Pharm., Inc., 621 Fed.Appx. 945, 946 (11th Cir. 2015)(citation and quotation omitted). A proposed class is adequately defined when the class definition contains objective criteria which allow for the identification of class members. Karhu, 621 Fed.Appx. at 946; City Select Auto Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 441 (3d Cir. 2017). Plaintiff asserts that each class is adequately defined because each element is defined by objective criteria. (Doc. #157, p. 12.) Defendants see the matter quite differently, asserting there are a host of problems with these proposed class definitions. (Doc. #164, pp. 15-21.) The Court will address Defendants' objections below.

         (1) Changed Scope of Proposed Classes

         Defendants argue that the proposed class definitions are broader than those set forth in the Amended Complaint, therefore rendering class certification inappropriate. Defendants assert that Plaintiff's initial classes only included persons who had not consented to being called, while the new classes include all persons who may be tied to a “wrong number” notation in any of Defendants' records, regardless of whether Defendants had consent. (Doc. #164, pp. 15-16.) In their written materials submitted at oral argument (Doc. #260), Defendants also complained that the proposed classes violate the due process rights of others because the current proposed classes exclude persons who had been in the original proposed classes.

         Plaintiff argues that even after discovery “there is no evidence of consent for any of the numbers in the class.” (Doc. #157, p. 11.) Additionally, Plaintiff replies that the proposed classes are not broader than those set forth in the Amended Complaint, but are actually narrower. Plaintiff asserts that he simplified the definitions to include only non-customers who, by definition, did not consent. (Doc. #174, pp. 1-2.)

         In order to give rise to a claim under the TCPA, a call must have been made “using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service[.]” 47 U.S.C. § 227(b)(1)(A)(iii). As discussed earlier, the lack of “prior express consent of the called party” is an affirmative defense to a TCPA claim, and therefore need not be negated in the complaint.[8]La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

         The original proposed classes in the Amended Complaint included all persons in the United States to whose cellular telephone number Defendants placed a non-emergency telephone call “using substantially the same system(s) that were used to telephone Plaintiff” where Bright House or ATS “did not have express consent to call said cellular telephone number.” (Doc. #46, ¶¶ 88-89.) A proposed sub-class consisted of persons receiving such calls “after that person had instructed Bright House [or ATS] to cease calls to that number.” (Doc. #46, ¶¶ 88, 89.) The Court concludes that while the language defining the proposed classes in the Amended Complaint is different from the language currently proposed, the differences are not so significant as to require denial of class certification.

         (2) New Prerecorded Voice Class

         Defendants also assert that Plaintiff never before proposed a class tied to the use of a prerecorded voice, since the classes set forth in the Amended Complaint only related to the automatic dialing system. (Doc. #164, p. 15.) According to Defendants, this new class must be disallowed. Plaintiff responds that discovery has established that all the calls at issue were made by ATS using a single calling system, the Aspect Unified IP dialer. This dialing system placed some prerecorded calls and some calls that were not prerecorded. Therefore, Plaintiff argues, all members of the Prerecorded Voice Class will be members of the ATDS class. (Doc. #174, pp. 1-2.)

         The “systems” used to telephone Plaintiff are consistently described in the Amended Complaint as including prerecorded calls. (Doc. #46, ¶¶ 4, 6, 30, 43, 53, 55, 59, 60, 61, 70, 71, 72.) Thus, the proposed prerecorded voice class is not so different from the original proposed classes that certification must be denied on that basis alone.

         (3) Changes to Class Definitions After Close of Discovery

         Defendants assert that the timing of the amended proposed classes - after the close of discovery - renders certification of such classes a violation of due process.[9] (Doc. #164, p. 16.) The Court concludes that none of the proposed changes will substantially change the contours of the classes or unduly prejudice Defendants and therefore would not violate due process.

         (4) Vague Terminology

         Defendants argue that the proposed classes are so vaguely worded that it is difficult to tell who Plaintiff intends to include in the classes. (Doc. #164, pp. 4-5, 17-18.) Plaintiff disagrees, as does the Court.

         Defendants assert that element (2) is vague because they cannot tell who qualifies as a “customer” in the phrase “not a customer” of either defendant. The declarations submitted on Defendants' behalf by David W. Zitko, Scott Van Nest, and Ryan D. Watstein (Docs. ##165-1, 165-3, 165-5) demonstrate no difficulty in understanding the concept of “customer.” The Court rejects Defendants' argument that the term “customer” is unduly vague.

         As to element (3), Defendants argue that the phrase “to whose cellular telephone number” Defendants called is vague because it fails to explain whether this includes persons who were the cellular subscribers, or the customary users of the cellphone, or both. This is important, Defendants assert, because non-subscriber customary users may consent to receive calls, consent is a complete defense to TCPA ...


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