In Aley a court certified a class action brought by the Wolf–he’s everywhere isn’t he?–involving calls made to numbers obtained from Myjobscorner.com. The class is defined as:

“[a]ll persons in the United States whose (1) telephone numbers were on the National Do Not Call Registry for at least 31 days, (2) but who received more than one telemarketing call from Lightfire as part of the “Auto Protectors” calling campaign (3) within a 12-month period, (4) as evidenced in the calling data Lightfire produced in this lawsuit, (5) from [the] four years prior [to] the filing of the Complaint.”

There are 62,225 members of this class meaning Lightfire Partners faces minimum of $62.5M in exposure here but I suspect the number is much higher depending on the number of attempts made to each class member.

The key part of the analysis here is on predominance.

Cases cannot be certified where individual issues impact the ultimate determination of class member claims at trial. In other words if class members have to individually testify or have their memory’s tested a case should never be certified.

In this case, for instance, where or not a class member actually visited the myjobscorner.com website is an individual issue, as even the court recognized:

“Connexus Digital has no way of verifying whether the phone numbers and consent they obtained through Myjobscorner.com came from the Proposed Class Members themselves or from other internet users entering phone numbers that did not belong to them. Therefore, whether individual Proposed Class Members ever visited the website at all is an open question for more than just Plaintiff Aley. Such questions could necessitate individual assessments of browsing histories, the use of proxy networks to disguise the IP addresses used to visit Myjobscorner.com, see Dkt. No. 68 1 at 13, whether the names entered with Proposed Class Members’ telephone numbers match the subscriber names for the telephone numbers, Proposed Class Members’ memories and credibility, Proposed Class Members’ job seeking status, and a myriad of other kinds of evidence the parties may use to try to prove Proposed Class Members did or did not visit Myjobscorner.com themselves.”

Get it?

Because the website operator–Connexus Digital–cannot prove that the consumer whose name is on the form actually filled out the form (you know, lead fraud) the defense should be free to put on evidence from the class member that they did fill out the form. That should thwart certification–individualized evauations of evidence are necessary here to determine liability to the class.

But the Court refused to find these issues predominate because of concerns about Connexus Digital’s processes:

 The sufficiency of the consent procedures used on Myjobscorner.com under the TCPA is an issue for every Proposed Class Member. Should the Court grant certification, and should the Court subsequently rule that the consent procedures were inadequate under the law, such a determination would render moot the individualized assessment of whether individual Proposed Class Members visited Myjobscorner.com. This dynamic incentivizes Proposed Class Members to prioritize the issue of Myjobscorner.com’s procedures. Therefore, the shared issue of whether Myjobscorner.com adequately obtained consent is “more substantial” than the individualized inquiries as to whether Proposed Class Members visited the website. Indeed, there is no risk of “sacrificing procedural fairness or bringing about other undesirable results” by proceeding as a class. Even if the Court rules that the consent gathered through Myjobscorner.com is adequate, individual Proposed Class Members will not have lost their ability to prove they never visited the website in the first place.

Oh dear god, this is awful.

See what the court did?

It basically foreshadowed that the website operator was not obtaining valid consents. But even if it was it would allow individual class members to provide the never visited the website!!!

That could theoretically mean dozens, hundreds or even thousands of mini-trials as ach class member testifies he or she did not actually visit the website.

Now that’s not actually going to happen, of course, and the court knows it–because the court is going to find that the website did not provide valid consent to begin with. No other outcome makes sense here.

So having gone through all of this we see once again why relying on third-party leads is soooo dangerous.

The defendant thought it had a vlaid lead for Plaintiff. And now every call made to a lead from this website is at issue. And, what’s more, the entire lead generation industry now faces a stunning reality– every lead ever bought from any source anywhere may now be at issue in every case anywhere.

All because of this case.

So utterly frustrating.

This may end up being the biggest in of the Wolf’s career– not because of the outcome in this case but because of its impact on the TCPAWorld more broadly. An “uncertifiable” case was just certified. And now, anything is possible.

Really really don’t like this ruling. But here we are.