SEBASTIAN CORDOBA, individually and on behalf of all others similarly situated v. DIRECTV, LLC, individually and as successor through merger to DIRECTV, Inc., JOHN DOE 1, et al.
No. 18-12077
United States Court of Appeals for the Eleventh Circuit
November 15, 2019
D.C. Docket No. 1:15-cv-03755-MHC
[PUBLISH]
Appeal from the United States District Court for the Northern District of Georgia
Before MARCUS and BLACK, Circuit Judges, and RESTANI,* Judge.
The defendants in this class action have appealed from the district court‘s certification of a class of plaintiffs who claimed
Sebastian Cordoba alleges that DIRECTV and the company it contracted with to provide telemarketing services, Telecel Marketing Solutions, Inc., failed to maintain this list and continued to call individuals who asked not to be contacted. He claims that he was wrongfully called some eighteen times by Telecel, even though he repeatedly demanded that he not be contacted. Cordoba seeks to represent a class of all persons who received more than one telemarketing call from
Telecel on behalf of DIRECTV while it failed to maintain an internal do-not-call list, in violation of FCC regulations.
The district court certified the class and we granted interlocutory review under
This does not mean the case is nonjusticiable, because the named plaintiff -- who repeatedly asked not to be called -- has standing, and all that Article III requires for the claim to be justiciable is that a named plaintiff have standing. Cordoba has established an injury in fact, traceability, and redressability. But the fact that many, perhaps most, members of the class may lack standing is extremely important to the class certification decision. In a case like this -- where the class certification has proceeded under Rule 23(b)(3) -- the district court is required to determine whether “the questions of law or fact common to class members predominate over any questions affecting only individual members.”
class members, the court will have to sort out those plaintiffs who were actually injured from those who were not. Determining whether each class member asked Telecel to stop calling requires an individualized inquiry, and the district court did not consider this problem at all when it determined that issues common to the class predominated over issues individual to each class member. We, therefore, conclude that the district court abused its discretion in certifying the class as it is currently defined, vacate the class it certified, and remand for further proceedings consistent with this opinion.
I.
The Telephone Consumer Protection Act was enacted in 1991 because, as Congress put it, “[m]any consumers [were] outraged over the proliferation of intrusive, nuisance [telemarketing] calls to their homes.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (quoting the
“Subject to exceptions not pertinent here, the TCPA principally outlaws four practices. First, the Act makes it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express
consent of the called party, to call any emergency telephone line, hospital patient, pager, cellular telephone, or other service for which the receiver is charged for the call. See
The TCPA also authorized the FCC to promulgate regulations “concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.”
liability for any violation if they can show that the violation was a mistake and that they meet minimum compliance standards.
Internal do-not-call lists are created and maintained by companies engaged in telemarketing. The main FCC regulation at issue today provides that “[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber” without “institut[ing] procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.”
common-law principles of agency, there is vicarious liability for TCPA violations.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 674 (2016).
Cordoba complains that DIRECTV hired Telecel Marketing Solutions, Inc.,
Cordoba commenced this class action lawsuit in the United States District Court for the Northern District of Georgia, alleging that DIRECTV and Telecel have violated several aspects of the TCPA‘s regulatory scheme. He sought to represent two classes. The first class -- and the one at issue today in this
interlocutory appeal -- was defined as including “all individuals who received more than one telemarketing call from Telecel on behalf of DIRECTV on or after October 27, 2011,” during which time Telecel failed to adhere to the internal do-not-call list regulations set out in
The district court certified both classes. First, the court held that the members of both classes had standing because an unsolicited phone call is an injury in fact and that the proposed classes were ascertainable. The court then determined that each of the requirements of
to resolution by fairly ‘simple and objectively verifiable means,‘” and that class litigation was superior due to the relatively small amount of damages available in an individual TCPA action.
DIRECTV then sought relief in this Court, filing a petition pursuant to
II.
Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1264 (11th Cir. 2009). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Id. (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)). And we review issues of fact for clear error and issues of law de novo. Id.
For a class to be certified, the named plaintiff must have standing and the putative class must satisfy both the requirements of
district court certified this class under
A.
We start with the question on which we granted review, whether the members of the internal do-not-call list class who did not ask to be put on the internal do-not-call list have standing. Article III extends “[t]he judicial power of the United States” . . . only to “Cases” and “Controversies.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016) (quoting
DIRECTV first says that the absent class members lack standing because they have not suffered an injury in fact under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In Spokeo, the Supreme Court explained that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549.
In other words, plaintiffs do not “automatically satisf[y] the injury-in-fact requirement whenever a statute” grants them the right to sue; they still must allege a “concrete” harm that is more than a “bare procedural violation.” Id. To be concrete, an injury “must be ‘de facto‘; that is, it must actually exist,” and it must be “‘real,’ and not ‘abstract.‘” Id. at 1548.
The Court explained that although Congress‘s decision to grant a right to sue is not determinative of Article III standing, “its judgment is also instructive and important” because “Congress is well positioned to identify intangible harms that meet minimum Article III requirements.” Id. at 1549. When Congress grants a procedural right, the violation of that right can be a concrete injury, and a plaintiff “need not allege any additional harm beyond the one Congress has identified.” Id. As an example, the Court pointed to Federal Election Commission v. Akins, 524 U.S. 11, 20-25 (1998), where it had held that a group of voters had standing to sue when they were unable to obtain information that Congress had required be made public. See Spokeo, 136 S. Ct. at 1549. In brief, Spokeo set forth two rules of law: Congress cannot grant a plaintiff who has not suffered a concrete injury the right to sue in federal court, but Congress has a “role in identifying and elevating intangible harms” to the level of concrete Article III injuries in fact. Id.
the proceeds to satisfy the balance on a mortgage owned by CitiMortgage. Under New York law, Citi had 30 days to file a certificate of discharge with the county clerk to record the satisfaction of the mortgage. Id. at 1000 (citing
To determine “whether the intangible harm caused by the delay in recording the certificate of discharge constitutes a concrete injury in fact,” we turned to Spokeo. Id. at 1002. We concluded that Nicklaw sustained neither “harm nor a material risk of harm that the district court could remedy” because he did not lose any money, his credit did not suffer, and no one was even aware of the delayed filing until after the recording had been made. See id. at 1003. New York could identify this injury as sufficient for standing in its own courts, but Nicklaw had sued in federal court and his claimed injury did not meet the requirements of Article III. Id. Addressing the denial of rehearing en banc, Judge William Pryor further explained that this case was different from the informational injury sustained in Akins, because a violation of the New York statute did not prevent
Nicklaw from obtaining any information about the satisfaction of his mortgage. Nicklaw v. CitiMortgage, Inc., 855 F.3d 1265, 1268 (11th Cir. 2017). “[T]he violation of a legal right alone does not satisfy the concrete injury requirement.” Id. Nicklaw suffered no harm and had no risk of future harm, so he lacked an injury in fact.
A panel of this Court recently applied Spokeo in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 858 F.3d 1362 (11th Cir. 2017). There, we held that a plaintiff had standing to sue after receiving certain faxes sent in violation of the Telephone Consumer Protection Act. The defendant, Arriva Medical, allegedly sent advertisements by fax in violation of the TCPA‘s prohibition on “the use of a fax machine to send an unsolicited advertisement unless the sender is in ‘an established business relationship with the recipient,’ the sender obtained the fax number from the recipient, or the advertisement contains a notice meeting the requirements of the statute.” Id. at 1365 (quoting
because the plaintiff‘s fax machine is occupied while the unsolicited fax is being sent and the plaintiff must shoulder the cost of printing the unsolicited fax.” Id. That “concrete injury” is all that Spokeo required, so the recipient of the fax had standing to sue.
These cases strongly suggest that the receipt of more than one unwanted phone call is enough to establish injury in fact. As we see it, a phone call is not much different
For these reasons, the Third Circuit held, after Spokeo was decided, that the receipt of a single unsolicited call to a cell phone and a voicemail recording constituted an injury in fact. Susinno v. Work Out World Inc., 862 F.3d 346, 351-52 (3d Cir. 2017). There, the court explained that “Congress squarely identified this injury” in the TCPA and that this harm bore a close relationship to the kind of harm that would have given rise to the common law cause of action of “intrusion upon seclusion.” Id. at 351; see also Perry v. Cable News Network, Inc., 854 F.3d 1336, 1340 (11th Cir. 2017) (holding that a plaintiff had standing to sue for a violation of the Video Privacy Protection Act, which Congress enacted “to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes” (quotation omitted)). We agree. The 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.
This Court‘s recent decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), that the receipt of a single unsolicited text message does not qualify as an injury in fact does not change our analysis. In Salcedo, we focused heavily on the unique features of text messages. Receiving a text message does not occupy the device for any period of time, unlike a fax or a phone call, and it does not create the same intrusion into the privacy of the home like an unwanted residential phone call. Id. at 1169-70. In fact, our Court expressly distinguished receiving a text
message from receiving an unwanted phone call, observing that the plaintiff in Salcedo “ha[d] not alleged anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone. . . . [His] allegations of a brief, inconsequential annoyance are categorically distinct . . . .” Id. at 1172. Compared to a phone‘s ring, “[t]he chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one‘s face.” Id. As we recognized in Salcedo, a phone call intrudes upon the seclusion of the home, fully occupies the recipient‘s device for a period of time, and demands the recipient‘s immediate attention. While those injuries might not be significant in the grand scheme of things, they are sufficiently concrete and particularized for Article III standing. This is enough to establish the injury in fact prong of standing for Cordoba and all of the absent class members who received calls from Telecel.
threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction,” because Article III “requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Id. at 41-42 (quotation omitted); see also Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated in part on other grounds by Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (holding that parents lacked standing to sue the IRS for their children‘s diminished ability to receive an education in a racially integrated school because, even though this was a cognizable injury, “whatever deficiencies exist in the opportunities for desegregated education for [plaintiffs‘] children might not be traceable to IRS violations of law“).
Following Lujan, we‘ve said that “an injury is not fairly traceable to the actions of a defendant if caused by the ‘independent action of some third party not before the court’ and likewise a controversy is not justiciable when a plaintiff independently caused his own injury.” Swann v. Secretary, 668 F.3d 1285, 1288 (11th Cir. 2012) (quoting Lujan, 504 U.S. at 560). We‘ve made it clear that the traceability requirement is less stringent than proximate cause: “[e]ven a showing that a plaintiff‘s injury is indirectly caused by a defendant‘s actions satisfies the fairly traceable requirement.” Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir.
2012). Thus, “for standing purposes [a plaintiff] is not required to prove causation beyond a reasonable doubt or by clear and convincing evidence.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003) (emphasis omitted).
Cordoba, as the named plaintiff, has no problem meeting the traceability requirement: the complaint squarely alleges that he repeatedly asked Telecel and DIRECTV to stop calling him, Telecel didn‘t keep a list of all those who asked not to receive calls, and he later suffered the injury of receiving many phone calls, which would not have happened if Telecel had maintained an internal do-not-call list and abided by it. Similarly, this is not a problem for the class based on calls made to individuals on the National Do Not Call Registry, since those whose numbers are on the Registry and nevertheless received marketing calls suffered an injury that is traceable to Telecel‘s misconduct -- if Telecel had followed the law and not called numbers on the Registry, they would not have been injured.
But if an individual not on the National Do Not Call Registry was called by Telecel and never asked Telecel not to call them again, it doesn‘t make any difference that Telecel hadn‘t maintained an internal do-not-call list. Telecel could and would have continued to call them even if it had meticulously followed the TCPA and the FCC regulations. For these individuals, then, their injury wouldn‘t be “fairly traceable to
560 (quoting Simon, 426 U.S. at 41) (emphasis added and alterations adopted). There is no remotely plausible causal chain linking the failure to maintain an internal do-not-call list to the phone calls received by class members who never said to Telecel they did not want to be called again. These plaintiffs therefore would lack
Our decision in Swann v. Secretary, 668 F.3d 1285 (11th Cir. 2012), is instructive. There, an inmate in a Georgia county jail sued after he failed to receive an absentee ballot. Id. at 1287. He claimed that a Georgia statute requiring that absentee ballots be sent to the address listed in the voter registry as the voter is permanent mailing address was unconstitutional. Id.; see
Cordoba attempts to salvage the standing of the class members who did not ask Telecel not to call them, arguing that DIRECTV injured them while engaging in a program of “unrestricted telemarketing,” which is the exact harm the
B.
Having concluded that members of the class who did not ask DIRECTV to stop calling them would lack standing, the more difficult question is what part this plays in the class certification analysis, and particularly how it may affect the
But on the other hand, our case law does not suggest that the absent class members’ standing is entirely irrelevant. In some cases, whether absent class members can establish standing may be exceedingly relevant to the class certification analysis required by
In this case, unnamed class members’ standing poses a powerful problem under
This problem will necessarily arise here because at some point before it can award any relief, the district court will have to determine whether each member of the class has standing. As Chief Justice Roberts explained, ”
The essential point, however, is that 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 any relief. That is an individualized issue, and it is one that the district court did not account for or consider in any way in deciding whether issues common to the class actually predominated over issues that were individualized to each class member. “An individual question is one where ‘members of a proposed class will need to present evidence that varies from member to member,’ while a common question is one where ‘the same evidence will suffice for each member to make a prima facie showing [or] the issue
The record on appeal is sorely lacking in information about two key questions: First, how many class members (or what proportion of them) asked Telecel not to call them anymore, like Cordoba did? The record does not reveal the answer, and counsel for neither party could provide an answer at oral argument.5 See Oral Argument at 13:30 (DIRECTV); id. at 36:10 (Cordoba). And second, how do class members intend to prove that they made these requests? If most class members made these requests, or if there is a plausible straightforward method to sort them out at the back end of the case, then the class might appropriately proceed as it is currently defined. If, however, few made these requests, or if it will be extraordinarily difficult to identify those who did, then the class would be overbroad and these individualized determinations might overwhelm issues common to the class. We do not know enough to say one way or the other on either point.
The Seventh Circuit faced similar problems in Kohen v. Pacific Investment Management Co. LLC, 571 F.3d 672 (7th Cir. 2009), a class action case filed under the
The court rejected the argument for reasons that illuminate the problem with the class definition here. First, it accepted that for
Here, it seems likely that the class definition is overbroad, and the district court‘s order did not consider this in any way. It only analyzed injury in fact under Spokeo; it did not address at all the “fairly traceable” requirement of
Inasmuch as the district court did not address the significant individualized standing question when it certified the class under
In a general sense, then, the basic question we face is whether a district court should sort out the uninjured class members before granting class certification, or whether it can wait until a later stage in the proceeding to determine which class members have suffered a redressable injury and are entitled to relief and which are not. We do not hold today that a court is required to ensure that the class definition does not include any individuals who do not have standing before certifying a class.
Our decision does not mean that a substantially similar class cannot be drawn or certified, or that no class action premised on a failure to maintain an internal do-not-call list could succeed, or even that the class as certified by district court was necessarily too broad. A plaintiff need not prove that every member of the proposed class has
The record does not reveal much about the makeup of the internal do-not-call list class. It does not give us any indication of how many members of the class would have been on the internal do-not-call list if it had existed, and thus it does not tell us how many members of the putative class have standing to sue. It is possible that the certified class “contains a great many persons” who lack standing to sue DIRECTV, see Kohen, 571 F.3d at 677; it is also possible that many members of the class did, in fact, ask Telecel to stop calling them and thus would have been on the internal do-not-call list if Telecel and DIRECTV had followed their regulatory obligations. That is not a determination we can make in the first instance on this limited record. What we can and do say is that the district court abused its considerable discretion in not considering this basic problem at all when it set about the task of determining whether the named plaintiff could circumnavigate the essential requirement of
VACATED AND REMANDED.
Notes
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- the representative parties will fairly and adequately protect the interests of the class.
A class action may be maintained if Rule 23(a) is satisfied and if:
- prosecuting separate actions by or against individual class members would create a risk of:
- inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
-
- adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
- the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
- 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. The matters pertinent to these findings include:
- the class members’ interests in individually controlling the prosecution or defense of separate actions;
- the extent and nature of any litigation concerning the controversy already begun by or against class members;
- the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
- the likely difficulties in managing a class action.