District Court (Wis.) Refuses to Allow TCPA Plaintiff to Use “Class-List” to Contact “Classmembers” After Class-Cert. Already Had Been Denied; Finds Irony in TCPA Case that Such Contact Would Be “Junk-Mail”

In Balschmiter v. TD Auto Finance LLC, 2015 WL 2451853E.D. Wis. 2015), Judge Stadtmueller denied Plaintiff’s request to use a classmember list provided under a protective order to give pre-trial notice to putative classmembers after the Court (and 7th Circuit) already had denied class certification.

The Court will not expend its resources, limited as they are, elaborating on the defendant’s reasons why notice would be improper, because, at bottom, the notice the plaintiff proposes is neither required (as she admits), nor even remotely permissible in these circumstances. As the Court will explain, the justifications for the Court’s conclusion are legion.  First, the Court is not convinced that the plaintiff’s request to send notice is a function of the plaintiff’s altruism—or that of Plaintiff’s counsel3—and not a ruse to either: (1) identify new clients and thereby recoup money Plaintiff’s counsel has expended in attempt to certify the class; or, (2) use the notice as leverage to force the defendant to settle, see Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir.1997) (noting that “danger of abuse that always attends class communications [prior to certification, including] the possibility that plaintiffs might use widespread publication of their claims, disguised as class communication, to coerce defendants into settlement …”).  Cf. Maddox & Starbuck, Ltd. v. British Airways, 97 F.R.D. 395, 397 (S.D.N.Y 1983) (noting that “[i]n determining whether notice should be given to putative class members when class certification has been denied, the Court will take care to avoid giving rise to barratry,” and requiring notice “without an adequate showing of reliance, not only would be sanctioning barratry, but it would be actively promoting it”).   ¶  Even were the Court to accept the plaintiff’s assertion that she wants to vindicate the rights of others, that burden and duty has been lifted from her by the Court’s denial of class certification. See Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1381 (11th Cir.1998) (“When the district court denies class certification, the named plaintiffs no longer have a duty to advance the interests of the putative class members.”). Indeed, there is no class, and those putative members are not parties to—nor bound by—the instant litigation. See Daniels v. Bursey, 430 F.3d 424, 428 (7th Cir.2005) (“Since a class was never certified, appellants were not members of a class, and therefore could not be bound.”); Devlin v. Scardelletti, 536 U.S. 1, 16 n. 1 (2002) (noting that “[n]ot even petitioner, however, is willing to advance the novel and surely erroneous argument that a nonnamed class member is a party to the class-action litigation before the class is certified ”) (Scalia, J. dissenting).  ¶  Second, Rule 23 provides no imperative to order class notice here. See Fed.R.Civ.P. 23(e) (requiring notice of “a proposed settlement, voluntary dismissal, or compromise” to members of a “certified class ”) (emphasis added); Fuller v. Instinet, Inc ., 120 Fed. Appx. 845, 846–47 (2d Cir.2004) (holding that even the pre–2003 version of Rule 23(e) “does not require notice to potential class members on a denial of class certification”); In re Katrina Canal Breaches Litig., 401 Fed. Appx. 884, 887 (5th Cir.2010) (“Even assuming that the district court had the power to issue such an order, which we do not decide, there is nothing that requires the court to order notice of the denial of class certification …”); Rineheart v. Ciba–Geigy Corp., 190 F.R .D. 197, 202 (M.D.La.1999) (“Neither the clear language set forth in subsection (e) of Rule 23 … nor the jurisprudence of the Fifth Circuit or elsewhere grants the Court the authority to mandate public notice of the denial of class certification.”). And, while Rule 23(d) may provide an avenue to order (or permit) discretionary notice to putative class members in certain scenarios, compare Puffer, 614 F.Supp.2d at 909–15 (finding discretionary authority to order notice of the denial of class certification in Rule 23(d)) with Marian Bank, 1999 WL 151872, at *2 (holding that Rule 23(d) does not apply when a class has not been certified),7 the limited circumstances where notice under Rule 23(d)(1)(B)(ii) might be occasioned, are not present here. Namely, the plaintiff has not offered a scintilla of evidence that the putative class members were aware of or relied on the instant matter to protect their rights, or would otherwise be prejudiced. See Puffer, 614 F.Supp.2d at 912 (finding that “there [was] ample evidence that many putative class members were made aware of [the] lawsuit prior to [the court’s] decision to deny class certification,” and thus failure to notify those individuals would risk prejudice to them); Daisy Mountain Fire Dist. v. Microsoft Corp., 547 F.Supp.2d 475, 485–86 (D.Md.2008) (collecting cases and holding that even notice of decertification is not warranted if absent class members did not receive notice of the earlier certification (and thus relied on the suit to protect their rights)); Griffith v. Javitch, Block & Rathbone, LLP, 241 F.R.D. 600, 601–03 (S.D.Ohio 2007) (finding notice unwarranted where there was no objective evidence of reliance by putative class members or publicity of the case).  ¶  Third, the irony of sending nearly two hundred thousand notices to individuals whose information was obtained through reverse look-ups—a method the Court (and both parties’ experts) expressed serious reservations about, see Balschmiter, 303 F.R.D. at 524–525—is not lost on the Court. It would seem odd, indeed, to permit notice to the absent class members using a method the Court found inaccurate enough to preclude class certification. Not only is there a risk of barratry here, see Maddox & Starbuck, 97 F.R.D. at 397, there is also a risk of Court-sanctioned junk mail.  The Court finds no reason to order or permit notice to the putative class members, given there is simply no evidence that the putative class members have relied on the instant matter to protect their rights, or would otherwise be prejudiced by the Court’s decision not to order or permit notice. At bottom, permitting or ordering notice is discretionary, see In re Katrina, 401 Fed. Appx. at 887, and the Court finds no reason to exercise its discretion in any other fashion except to enforce the explicit language of the protective order.  ¶  Finally, to the extent that putative class members may lose their claims due to the statute of limitations, this places no obligation on the Court “to awaken potential litigants from their lethargy,” Marian Bank, 1999 WL 151872, at *3, nor does it permit the Court to torch the protective order and ignore the unreliability of reverse look-ups of historical cell phone numbers, in order to, “in a sense[,] merely solicit[ ] client[s]for plaintiff’s counsel under the aegis of the court.” Elias v. Nat. Car Rental Sys., Inc., 59 F.R.D. 276, 277 (D.Minn.1973).