Recently, the Northern District of California joined other courts in more closely scrutinizing class certification motions in TCPA cases. In a case involving an automated phone call by a loan servicer regarding Plaintiff’s student loans, the district court held that the Plaintiff had failed to present evidence to satisfy Rule 23(a)’s numerosity requirement, even though the defendant had made millions of automated calls to millions of customers. Plaintiff also failed to satisfy Rules 23(b)(3) and (b)(2). The class failed under Rule 23(b)(3) because Plaintiff did not show that common questions predominated as to the consent defense and failed under Rule 23(b)(2) because Plaintiff primarily sought statutory damages rather than an injunction. Silver v. Pennsylvania Higher Education Assistance Agency, No. 14-cv-00652, 2020 WL 607054 (N.D. Cal. Feb. 7, 2020).

The Claims. Plaintiff had student loans borrowed from the United States Department of Education. Id. at *3. Defendant was a Department-approved loan servicer. Id. at *2. The Department had informed Plaintiff that once he was assigned to a loan servicer, he would be contacted via phone or mail. Id. at *3.

Plaintiff alleged that Defendant violated the TCPA when it used its automated dialing system to call him on his cell phone a single time on January 13, 2014. Id. at *3. Plaintiff had sent letters and emails to Defendant prior to Defendant’s automated call, some of which contained Plaintiff’s telephone number, and some of which stated that Defendant was required to communicate with Plaintiff in writing. Id. at *3. Additionally, Plaintiff also called Defendant on his cellphone various times prior to Defendant’s automated call and once on the day of the automated call. Id.

The Proposed Class. In Plaintiff’s first amended complaint, he sought to certify a class of “All persons within the United States who received any calls from Defendant, or its agent(s) and/or employee(s), to said person’s cellular telephone, through the use of any automatic telephone dialing system and/or prerecorded or artificial voice, within the four years prior to the filing of the Complaint.” Id. at *2. In his motion for class certification, Plaintiff sought to narrow the proposed class by adding the requirement that the calls were made “after [the called party had] . . . requested [defendant] to refrain from further telephone communication.” Id. at *1. The court considered the narrower amended class definition set forth in Plaintiff’s motion. Id. at *5.

Numerosity. Although Defendant made more than 15 million calls to some 3 million unique cell phone numbers, the court found that the requirement for numerosity was not satisfied for Plaintiff’s proposed revocation-of-consent class. Id. at *8. The court explained that “courts often find that a group greater than 40 members” satisfies the numerosity requirement. Id. at *8. Plaintiff had suggested a proposed class notice plan, which he planned to disseminate to potential class members in order to identify the class. Id. at *1. The notice plan would ask potential class members whether they had received calls from Defendant after requesting not to be contacted via telephone. Id. Plaintiff asked the court to make “common sense assumptions” that the court could “draw from ‘the unlikely event that less than 40 consumers out of 3 [million] who received telephonic communications from [defendant] submit a claim’ in response to” his proposed notice plan. Id. at *8. The court explained that such an alleged probability was not evidence. Id. By contrast, Defendant had proffered evidence that Defendant routinely obtained and recorded a borrower’s consent to be called. Id. Additionally, the court noted that, despite a multi-month discovery period, Plaintiff had been unable to identify “even one other similarly situated individual,” which “further undermine[d] plaintiff’s proffered assumption that, because of the sheer number of calls made, at least 39 others must have been contacted by defendant without consent.” Id.

Predominance. Additionally, the court held that Plaintiff’s proposed class failed under Rule 23(b)(3) because he failed to show that common questions predominated over the individual questions inherent in Defendant’s consent affirmative defense. Id. at *9. Defendant presented letters and emails from Plaintiff providing his phone number, evidence of phone calls made to Defendant from Plaintiff’s cell phone, and loan documents containing consent language allowing contacts by telephone. Id. at *11. The court ruled that because Defendant had presented evidence that it had obtained Plaintiff’s consent for the call, Defendant satisfied its threshold evidentiary burden to put consent at issue for the predominance analysis. Id. The burden then shifted to Plaintiff to show that the consent defense could be litigated by common, class-wide proof. Id. at *12 Plaintiff failed to satisfy this burden. Id. at *13. The court determined that class-wide proof was not feasible where Defendant had proffered evidence of Plaintiff’s individual letters, emails, and phone calls to Defendant. Id. at *14. Plaintiff also failed to proffer evidence that Defendant’s loan documents containing consent language “were uniform in their inclusion (or exclusion) of a provision requesting borrowers to include their respective contact information.” Id. Additionally, the court held that plaintiff had failed under Rule 23(b)(3) because he did not show how he could prove revocation of consent by potential class members on a class-wide basis. Id. at *16. Noting that whether consent was effectively revoked must be judged under the totality of the circumstances, the court found that individual issues would predominate. Id. at **15–17.

Request for Statutory Damages Defeats Rule 23(b)(2) Injunction Class. Finally, the court held that the proposed class also failed under Rule 23(b)(2). Id. at *17. Plaintiff primarily requested statutory damages, not declaratory or injunctive relief. Id. In addition, Defendant had adopted a new policy that would cease autodialed calls upon a broader set of commands from recipients, and Plaintiff had failed to show how Defendant’s changed policy did not render the request for injunctive relief moot. Id. at *17–18.

Conclusion. The decision offers valuable lessons to defendants opposing class certification in TCPA cases. As the court noted, the mere fact that the defendant made millions of calls does not mean that the case is suitable to be tried as a class action. Class certification requires evidence satisfying each of Rule 23’s requirements, not “common sense” assumptions based on the sheer number of automated phone calls.