Sebastian Cordoba v. DIRECTV, LLC ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12077
________________________
D.C. Docket No. 1:15-cv-03755-MHC
SEBASTIAN CORDOBA, individually and on behalf of all others similarly
situated,
Plaintiff - Appellee,
versus
DIRECTV, LLC, individually and as successor through merger to DIRECTV,
Inc.,
Defendant - Appellant,
JOHN DOE 1, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 15, 2019)
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Before MARCUS and BLACK, Circuit Judges, and RESTANI, * Judge.
MARCUS, Circuit Judge:
The defendants in this class action have appealed from the district court’s
certification of a class of plaintiffs who claimed they received telemarketing calls
from DIRECTV in violation of the Telephone Consumer Protection Act (TCPA),
47 U.S.C. § 227. Congress sought to protect consumer privacy by placing limits
on telemarketing calls and granting individuals who unlawfully receive calls
permission to sue. At the direction of Congress, the Federal Communications
Commission (FCC) promulgated a regulation requiring telemarketers to maintain
lists of individuals who have asked not to receive calls from particular callers -- so-
called “internal do-not-call lists.”
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
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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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 Federal Rule of Civil Procedure 23(f). We now vacate the district court’s
certification order. The unnamed members of the putative class who did not ask
DIRECTV to stop calling them -- and thus would not have been on the internal do-
not-call list, even if it had existed and had been maintained perfectly -- were not
injured by the failure to comply with the regulation. That means their injuries are
not fairly traceable to DIRECTV’s alleged wrongful conduct, and therefore they
lack Article III standing to sue DIRECTV.
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.” Fed. R. Civ.
P. 23(b)(3). At some point before it may order any form of relief to the putative
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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 Telephone Consumer
Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394, 2394). In
particular, Congress noted that “[a]utomated or prerecorded telephone calls made
to private residences . . . were rightly regarded by recipients as ‘an invasion of
privacy.’” Id. (quotation omitted).
“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
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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 47 U.S.C. § 227(b)(1)(A). Second, the TCPA forbids using artificial or
prerecorded voice messages to call residential telephone lines without prior express
consent. § 227(b)(1)(B). Third, the Act proscribes sending unsolicited
advertisements to fax machines. § 227(b)(1)(C). Fourth, it bans using automatic
telephone dialing systems to engage two or more of a business’ telephone lines
simultaneously. § 227(b)(1)(D).” Id. at 373.
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.” 47 U.S.C. § 227(c)(1).
The FCC was instructed by Congress to consider various approaches, “including
the use of electronic databases, telephone network technologies, special directory
markings, industry-based or company-specific ‘do not call’ systems, and any other
alternatives.” Id. § 227(c)(1)(A). The FCC promulgated regulations creating a
national do-not-call list and requiring telemarketers to maintain their own internal
do-not-call lists. Both of these provisions are involved in this case. The National
Do Not Call Registry is maintained by the federal government, and telemarketers
are prohibited from soliciting residential telephone subscribers who have registered
their numbers on the list. 47 C.F.R. § 64.1200(c)(2). Telemarketers can avoid
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liability for any violation if they can show that the violation was a mistake and that
they meet minimum compliance standards. Id. § 64.1200(c)(2)(i).
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.” Id. § 64.1200(d) (emphasis added). The FCC requires that
telemarketers have a written policy for maintaining an internal do-not-call list,
train their personnel on its “existence and use,” put people on the list when they
ask, and refrain from calling individuals on the list for five years after a request is
made. See id. The TCPA creates a private right of action for anyone who receives
more than one call within a year from the same entity in violation of these
regulations, and plaintiffs can recover $500 in statutory damages for each
violation. See 47 U.S.C. § 227(c)(5). The statute provides an affirmative defense
for defendants who “established and implemented, with due care, reasonable
practices and procedures to effectively prevent telephone solicitations in violation
of the regulations,” but it also makes available treble damages against a defendant
who “willfully or knowingly violated the regulations.” Id. “[U]nder federal
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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.,
sometime around 2003 to market its goods and services via telephone. Between
March 27, 2015, and March 3, 2016, Telecel placed over 60,000 marketing calls on
DIRECTV’s behalf to 24,566 unique telephone numbers. Cordoba personally
began receiving unsolicited calls from DIRECTV in July 2014. According to the
complaint, he was called at least eighteen times between April and November of
2015, even though his number appeared on the National Do Not Call Registry and
even though he repeatedly told Telecel that he did not want to be called. The
owner of Telecel admitted that the company did not maintain an internal do-not-
call list (plainly a violation of FCC regulation), and said that its practice was to
simply delete individuals’ contact information from its database if they asked not
to be called. Cordoba says that he went so far as to write to DIRECTV and request
that they cease calling him. DIRECTV responded and promised that they would
no longer contact him, but still the calls continued.
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
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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 47 C.F.R. §§ 64.1200(d)(1)–(6). Based on call
data produced during discovery, Cordoba said this class includes at least “16,870
individuals who received a total of 52,810 calls.” The second class -- which is not
involved in this appeal -- was defined as all individuals whose telephone numbers
were on the National Do Not Call Registry but nevertheless received more than
one DIRECTV marketing call from Telecel on or after October 27, 2011. This
class consisted of 926 individuals who received a total of 2,829 calls.
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 Rule 23(a) -- numerosity of parties,
commonality of issues, typicality of the class representative’s claims, and
adequacy of representation -- was satisfied. Since Cordoba’s claim was for money
damages, the court moved on to Rule 23(b)(3), which further requires that common
questions “predominate over any questions affecting only individual members” and
that a class action be “superior” to other methods of adjudication. Fed. R. Civ. P.
23(b)(3). The trial court determined that any individual issues would be “amenable
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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 Rule
23(f), seeking permission to appeal on an interlocutory basis from the district
court’s order certifying the classes. See Fed. R. Civ. P. 23(f) (“A court of appeals
may permit an appeal from an order granting or denying class-action certification .
. . .”); see also Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1274–76 (11th
Cir. 2000) (setting out guideposts for determining whether a 23(f) petition ought to
be granted). DIRECTV’s petition asked for review of two questions, but we
granted permission to appeal on only one of them. 1 That question, which we now
address, is “[w]hether a recipient of a telemarketing call who did not request to be
placed on the caller’s internal DNC [do-not-call] list has standing under Article III
to maintain a claim that the caller failed to institute appropriate internal DNC list
procedures.”
II.
Rule 23(f) limits our review to the district court’s order granting or denying
class certification. We review the class certification order for abuse of discretion.
1
The other question was “[w]hether, to find the predominance and ascertainability criteria for
class certification satisfied, the district court improperly created a new legal rule requiring
DIRECTV to prove that calls were not made for telemarketing purposes.”
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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 Federal Rule of Civil
Procedure 23(a) 2 and the requirements found in one of the subsections of Rule
23(b).3 City of Hialeah v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002). The
2
Rule 23(a) reads:
One or more members of a class may sue or be sued as representative parties on
behalf of all members only if:
(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.
3
Rule 23(b) reads:
A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would
create a risk of:
(A) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for the
party opposing the class; or
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district court certified this class under Rule 23(b)(3), which permits class
certification when “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).
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.
(B) 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;
(2) 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
(3) 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:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
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Robins, 136 S. Ct. 1540, 1547 (2016) (quoting U.S. Const. art. III, §§ 1–2).
Standing doctrine is “rooted in the traditional understanding of a case or
controversy” and “limits the category of litigants empowered to maintain a lawsuit
in federal court to seek redress for a legal wrong”; it “‘serves to prevent the judicial
process from being used to usurp the powers of the political branches’ and confines
the federal courts to a properly judicial role.” Id. (quoting Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 408 (2013)) (citations omitted). The three requirements
for Article III standing are familiar: the plaintiff must allege that he suffered an
“injury in fact” that is “concrete and particularized” and “actual or imminent”; that
injury must be “fairly traceable to the challenged action of the defendant”; and it
must be “likely . . . that the injury will be redressed by a favorable decision.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (quotation omitted and
alterations adopted). The plaintiff bears the burden of establishing each element.
Id. DIRECTV claims that the unnamed class members who did not ask Telecel to
stop calling cannot satisfy either of the first two prongs of the analysis -- injury in
fact or traceability.
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.
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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.
Not long after Spokeo, this Court decided Nicklaw v. CitiMortgage, Inc.,
839 F.3d 998 (11th Cir. 2016). Nicklaw had sold real estate in New York and used
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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 N.Y. Real Prop.
Law § 275; N.Y. Real Prop. Acts. Law § 1921). If Citi didn’t do this within 30
days, it would be liable to Nicklaw for $500, then $1,000 after 60 days, and $1,500
after 90. Citi ended up making the recording over 90 days after the satisfaction of
the mortgage. Id. at 1001. Nicklaw filed a class action, which ended up in the
Southern District of Florida. Id. at 1000–01. On appeal, we asked whether
Nicklaw, the named plaintiff, had standing to sue over the delayed filing. See id.
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
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Nicklaw from obtaining any information about the satisfaction of his mortgage.
Nicklaw v. CitiMortgage, 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 47 U.S.C. § 227(b)(1)(C)). An
earlier case in our Court, Palm Beach Golf Center–Boca v. John G. Sarris, D.D.S.,
P.A., 781 F.3d 1245 (11th Cir. 2015), had held that the receipt of a fax violating
this rule was enough to establish standing. Id. at 1252–53. In Florence Endocrine
we cited Spokeo and applied Palm Beach Golf, finding that Spokeo had not
abrogated this precedent. See Florence Endocrine, 858 F.3d at 1366. We
explained that a plaintiff who receives an unwanted fax “suffers a concrete injury
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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 from a fax -- “[e]very call uses some of the phone owner’s time and
mental energy, both of which are precious.” Patriotic Veterans, Inc. v. Zoeller, 845
F.3d 303, 305–06 (7th Cir. 2017). Indeed, a phone call is in some ways more
intrusive than a fax, since a ringing phone requires immediate attention, and
although the recipient of a phone call is not required to bear any printing costs, he
may also bear the cost of telephone minutes. This is unlike the injury alleged in
Nicklaw, because the receipt of an unsolicited phone call is an injury that the
district court can remedy. And we know that Congress focused on precisely this
kind of harm when it passed the TCPA, finding that “[m]any consumers [were]
outraged over the proliferation of intrusive, nuisance calls to their homes from
telemarketers.” Pub. L. No. 102–243, § 2, 105 Stat. 2394, 2394. Congress
identified telemarketing as a potentially “intrusive invasion of privacy,” suggesting
to us that Congress considered the receipt of an unwanted telemarketing call to be
a real injury. Id.
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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
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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.
DIRECTV’s second argument -- that class members who did not ask Telecel
to stop calling fail to meet Lujan’s traceability requirement -- is more persuasive.
Article III standing requires a “causal connection between the injury and the
conduct complained of” -- in other words, the injury must be “fairly traceable to
the challenged action of the defendant.” Lujan, 504 U.S. at 560 (quotation omitted
and alterations adopted). As the Court explained in Simon v. East Kentucky
Welfare Rights Organization, 426 U.S. 26 (1976), “plaintiffs must allege some
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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
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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 the challenged action of the defendant.’” Lujan, 504 U.S. at
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560 (quoting Simon, 426 U.S. at 41) (emphasis added and alterations adopted).
There’s 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 didn’t want to be called again. These plaintiffs therefore
would lack Article III standing to sue.
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’s
permanent mailing address was unconstitutional. Id.; see Ga. Code Ann. § 21-2-
381(a)(1)(D). But we held that Swann lacked standing to bring this claim, because
he never asked for the absentee ballot to be sent to the jail -- on the absentee ballot
application, he listed his permanent address as his “Address as Registered,” and
left the space for his “Address (Ballot to be mailed)” blank. Id. Because his
“failure to provide the address of the jail on his application independently caused
his alleged injury,” his claimed injury was not traceable to the defendants’
challenged actions. Id. at 1289. Swann would have been injured in precisely the
same way even if the state officials had not engaged in the conduct that he claimed
was unlawful, just like the absent class members here who did not ask Telecel to
stop calling them. Simply put, “a plaintiff lacks standing to challenge a rule if an
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independent source would have caused him to suffer the same injury.” Id. at 1288.
Under that principle, the absent class members who did not call Telecel would not
have been on the internal do-not-call list and therefore would lack standing
because of the failure to trace the injury to the unlawful conduct.
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 TCPA
was expressly intended to prevent. But this gets them no closer. If the injury
asserted by unnamed putative class members is just that DIRECTV violated
regulations under the TCPA by engaging in telemarketing without maintaining an
internal do-not-call list, that claim runs smack into the Spokeo problem of asserting
a “bare procedural harm” untethered to a concrete and particularized injury in fact.
And if the “unrestricted telemarketing” argument depends on their injury in fact of
receiving unwanted phone calls, it fails for the reason we’ve already discussed: the
receipt of a call is not traceable to Telecel’s failure to comply with the internal do-
not-call list regulations if the recipient wouldn’t have been on the list in the first
place even if it had been maintained. In short, the allegation that the absent class
members were injured while DIRECTV engaged in an “unrestricted telemarketing”
campaign does not add anything to the argument -- Lujan requires that the
plaintiffs allege a concrete and particularized injury in fact that is fairly traceable to
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the defendant’s wrongful conduct. The class members who did not ask Telecel to
stop calling them cannot do so.
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 Rule
23(b)(3) predominance inquiry. For starters, we agree with Cordoba that, for a
class action to be justiciable, “all that the law requires” is that a named plaintiff
have standing. In constitutional terms, “[t]hat a suit may be a class action . . . adds
nothing to the question of standing”; named plaintiffs “must allege and show that
they personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong.” Spokeo, 136 S. Ct. at
1547 n.6 (quoting Simon, 426 U.S. at 40 n.20). This Court also has held that no
more is required at the class certification stage. See Prado-Steiman, 221 F.3d at
1279 (“[I]t is well-settled that prior to the certification of a class, and technically
speaking before undertaking any formal typicality or commonality review, the
district court must determine that at least one named class representative has
Article III standing to raise each class subclaim.” (emphasis added)); see also 1
William B. Rubenstein, Newberg on Class Actions § 2:3 (5th ed. 2016) (“[T]he
vast majority of courts continue to heed the basic rule that the standing inquiry
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focuses on the class representatives, not the absent class members.”). So if
DIRECTV’s argument depended on the proposition that all class members must
prove their standing before a class could be certified, that argument would be
wrong. The named plaintiff has said enough in the complaint to establish injury in
fact, traceability, and redressability.
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 Federal Rule of Civil Procedure 23. See
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1358 (11th Cir. 2009); see also 1
Rubenstein, supra, § 2:3 (“Most courts concerned about the standing of absent
class members are in fact concerned about whether the class is properly defined . . .
. In this sense, the problem of un-injured absent class members is a problem of
Rule 23, not of Article III.”). The problem here, then, is not that this claim is not
justiciable -- plainly it is -- but rather that many claims of the absent class members
may not be. Among the factors that we have directed district courts to consider
before certifying a class are “how the class will prove causation and injury and
whether those elements will be subject to class-wide proof,” since “[t]he issue of
liability . . . includes not only the question of violation, but also the question of fact
of injury.” Williams, 568 F.3d at 1358 (quoting Alabama v. Blue Bird Body Co.,
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573 F.2d 309, 320 (5th Cir. 1978)); see also Klay, 382 F.3d at 1254 (“[W]e must
take into account ‘the claims, defenses, relevant facts, and applicable substantive
law,’ to assess the degree to which resolution of the classwide issues will further
each individual class member’s claim against the defendant.” (quoting Castano v.
Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996))); Rutstein v. Avis Rent-A-Car
Sys., Inc., 211 F.3d 1228, 1235–36 (11th Cir. 2000) (“[S]erious drawbacks to the
maintenance of a class action are presented where initial determinations . . . turn
upon highly individualized facts.” (quoting McCarthy v. Kleindienst, 741 F.2d
1406, 1415 (D.C. Cir. 1984))). If many or most of the putative class members
could not show that they suffered an injury fairly traceable to the defendant’s
misconduct, then they would not be able to recover, and that is assuredly a relevant
factor that a district court must consider when deciding whether and how to certify
a class.
In this case, unnamed class members’ standing poses a powerful problem
under Rule 23(b)(3)’s predominance factor.4 We have said that “[c]ommon issues
4
Although appellant DIRECTV did not frame the issue precisely in this manner, we are satisfied
that it adequately preserved the issue and presented it on appeal. In its brief opposing class
certification in the district court, DIRECTV argued that the predominance requirement was not
satisfied because “the question of whether a particular person was harmed by Telecel’s alleged
procedural violation of the [internal do-not-call list] regulations, and hence has standing to
complain of that alleged violation, would necessarily require individualized proof.” And in their
opening brief in this Court, DIRECTV argued that “only individuals who asked not to be called
suffered an actual injury from Telecel’s failure to maintain an internal DNC list,” and that this
“individualized issue would make certification impermissible under Rule 23(b)(3)’s
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of fact and law predominate if they have a direct impact on every class member’s
effort to establish liability and on every class member’s . . . entitlement to
injunctive and monetary relief,” but “common issues will not predominate over
individual questions if, as a practical matter, the resolution of an overarching
common issue breaks down into an unmanageable variety of individual legal and
factual issues.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 985 (11th Cir. 2016)
(quoting Babineau v. Fed. Express Corp., 576 F.3d 1183, 1191 (11th Cir. 2009)).
Moreover, “[t]he Rule requires a pragmatic assessment of the entire action and all
the issues involved.” Williams, 568 F.3d at 1357 (quoting 5 James Wm. Moore et
al., Moore’s Federal Practice § 23.45[1], at 23–217 (3d ed. 2008)). Determining
which type of question predominates requires “more of a qualitative than
quantitative analysis.” 2 Rubenstein, supra, § 4:50 (citing, among other cases,
Buford v. H & R Block, Inc., 168 F.R.D. 340, 356 (S.D. Ga. 1996), aff’d, 117 F.3d
1433 (11th Cir. 1997) (table)).
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, “Article III does not
give federal courts the power to order relief to any uninjured plaintiff, class action
predominance requirement.” It may not have been their primary argument, but the issue was
squarely presented to both the district court and this Court on appeal.
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or not. The Judiciary’s role is limited ‘to provid[ing] relief to claimants, in
individual or class actions, who have suffered, or will imminently suffer, actual
harm.’” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1053 (2016) (Roberts,
C.J., concurring) (quoting Lewis v. Casey, 518 U.S. 343, 349 (1996)). That is not
to say that a class action cannot move forward if there are some uninjured
members in the class as it is currently defined. Indeed, in Tyson Foods the Chief
Justice joined the majority in affirming the denial of a motion for decertification,
even though “it [was] undisputed that hundreds of class members suffered no
injury in [that] case.” Id. at 1051.
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 is susceptible to generalized, class-wide proof.’” Tyson
Foods, Inc., 136 S. Ct. at 1045 (quoting 2 Rubenstein, supra, § 4:50). It appears to
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us that each plaintiff will likely have to provide some individualized proof that
they have standing -- i.e., each plaintiff will have to provide some evidence that he
or she called Telecel or otherwise communicated that they did not wish to be
called, and that their injury is therefore traceable to Telecel’s violation of the law.
When this standing question is added to the mix, individualized questions may
predominate over common issues susceptible to class-wide proof. There is no
indication, however, that the district court considered this real-world problem at
all; rather, it certified a class defined as all individuals who received multiple calls
during the relevant time period, regardless of whether they ever asked to no longer
be called by Telecel.
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
5
The number might be quite small. Cordoba alleges in his complaint that Telecel called 16,870
unique phone numbers more than once from March 27, 2015, to March 3, 2016 -- the individuals
with these numbers make up the internal do-not-call list, as the district court certified it. Only
926 of those phone numbers -- 5.5 percent -- were listed on the National Do Not Call registry. If
a similar number of individuals asked Telecel not to call them, then the class members who have
standing are vastly outnumbered by those who do not.
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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 don’t 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 Commodity Exchange Act, 7 U.S.C. § 25(a). There, the plaintiffs were
short sellers who alleged that the defendants had cornered the market in futures on
10-year Treasury notes and unlawfully driven up the price. The class was defined
by the district court as all traders who bought futures contracts to close out their
short positions during the particular time frame in which the defendants had
allegedly manipulated the price. Id. at 676. The defendants objected to that
definition, arguing that the class certified was defined in a way that was overbroad
because it included some who had not suffered a net loss because they made more
money from offsetting long positions than they had lost on their shorts. Id.
The court rejected the argument for reasons that illuminate the problem with
the class definition here. First, it accepted that for Article III purposes only one
plaintiff -- before class certification, the named plaintiff -- must have standing for
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the case to be justiciable. Id. Then, the court pointed out that a properly defined
class “will often” include uninjured class members, and that is not a problem that
precludes class certification. Id. at 677. After all, the members of the class might
not be fully known, or some of the facts bearing on their claims might be unknown.
Or, for instance, a class in a products liability case could be defined to include
everyone who purchased a defective product, even if every single unit might not
have the defect. See 1 Rubenstein, supra, § 2:3. But crucially, the Seventh Circuit
recognized that “a class should not be certified if it is apparent that it contains a
great many persons who have suffered no injury at the hands of the defendant.”
Kohen, 571 F.3d at 677 (emphasis added); see also In re New Motor Vehicles
Canadian Exp. Antitrust Litig., 522 F.3d 6, 28 (1st Cir. 2008) (“[T]he district court
would need enough information to evaluate preliminarily whether the proposed
model will be able to establish, without need for individual determinations for the
many millions of potential class members, which consumers were impacted . . .
and which were not.”); Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir.
2006) (affirming the denial of class certification when “[c]ountless members of
[the] putative class could not show any damage” resulting from the defendant’s
actions). Indeed, if a class is “overbroad” in this way, there is a “compelling
reason” to redefine it more narrowly. Kohen, 571 F.3d at 678. Given the “in
terrorem character of a class action,” id., a class defined so as to improperly
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include uninjured class members increases the potential liability for the defendant
and induces more pressure to settle the case, regardless of the merits.
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 Article III
standing, other than having made two fleeting references. When it discussed Rule
23(b)(3), the district court considered whether putative class members could be
sorted out for other reasons -- for example, because the number called by Telecel
belonged to a business subscriber, not a residential one -- but it did not did not say
anything about the standing problem that arguably affected the bulk of the
unnamed members of the class it had drawn. That oversight was an abuse of
discretion. See Vega, 564 F.3d at 1264 (“A district court abuses its discretion if it
applies an incorrect legal standard, follows improper procedures in making the
determination, or . . . appl[ies] the law in an unreasonable or incorrect manner.”
(quoting Klay, 382 F.3d at 1251)).
Inasmuch as the district court did not address the significant individualized
standing question when it certified the class under Rule 23(b)(3), we vacate the
certification of the internal do-not-call list class and remand for further
consideration. We hold today only (1) that calls placed in violation of the
Telephone Consumer Protection Act are injuries in fact under the framework
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explicated by the Supreme Court in Lujan and Spokeo and our own case law, but
(2) that recipients of such calls who never asked the telemarketer to stop calling
them do not have standing to sue over violations of the internal do-not-call list
regulations because their injuries are not fairly traceable to the telemarketer’s
failure to maintain an internal do-not-call list.
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. Such a rule would run the risk of promoting so-called “fail-safe” classes,
whose membership can only be determined after the entire case has been litigated
and the court can determine who actually suffered an injury. See 1 Rubenstein,
supra, § 2:3. Rather, we only hold that in this case the district court must consider
under Rule 23(b)(3) before certification whether the individualized issue of
standing will predominate over the common issues in the case, when it appears that
a large portion of the class does not have standing, as it seems at first blush here,
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and making that determination for these members of the class will require
individualized inquiries.
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 Article III standing prior to certification, and in some cases
a court might reasonably certify a class that includes some putative members who
might not have satisfied the requirements of Lujan and decide to deal with the
problem later on in the proceeding, but before it awarded any relief. But there is a
meaningful difference between a class with a few members who might not have
suffered an injury traceable to the defendants and a class with potentially many
more, even a majority, who do not have Article III standing.
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
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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 Rule 23(b)(3) that common issues
must predominate over issues individualized to each class member. On remand,
the district court will be in a better position to answer these questions and,
ultimately, to address whether common issues predominate under Rule 23(b)(3)
when this issue is baked into the analysis. Accordingly, we vacate the class
certified by the district court and remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED.
34