District Court (Fla.) Denies Certification of TCPA Class Action Because Issue of Consent is Too Individualized; Cites 9th Circuit’s Meyer Decision

In Balthazor v. Central Credit Services, Inc., 2012 WL 6725872 (S.D.Fla. 2012), Judge Cohn denied certification of a TCPA class action, finding the issue of consent to be too individualized.

The Court finds the reasoning of Hicks and Gene & Gene, LLC persuasive. Resolution of each putative class member’s TCPA claim would necessarily involve an individual assessment of whether each class member consented to receive telephone calls on their cellular telephone. The Court rejects Plaintiff’s argument that consent is not an obstacle to class certification. See Mem. at 14. Plaintiff argues that consent is not an obstacle to class certification because a 2008 Federal Communications Commission (“FCC”) Declaratory Ruling 07–232 (2008 FCC Order”)  which provides that if a customer provides his cellular telephone number to an original creditor, he has consented to calls from the original creditor’s debt collector is invalid under Chevron, U.S.A., Inc. V. National Resources Defense Council, 467 U.S. 837, 844 (1984), because it “impermissibly amends the TCPA to provide an exception for ‘prior express or implied consent’ and flies in the face of Congress’ intent.” Id. Plaintiff also argues that even if the 2008 FCC Order applies, it is not an “individualized issue” which precludes class certification be-cause “Defendant has not produced any evidence of consent for the Security Credit TCPA class.” Id. The Court declines to reach the merits of Plaintiff’s bare bones argument that the 2008 FCC Order “impermissibly amends the TCPA” and is unreasonable under Chevron. See id. Plaintiff fails to cite any authority for her argument that Congress did not intend to allow provision of a telephone number to an original creditor to act as express consent to call from a debt collector. See Reply at 3–5. Indeed, the only case that Plaintiff cites for the proposition that the 2008 FCC Order is overbroad, Leckler v. Cashcall, Inc., 554 F.Supp.2d 1025, 1033 (N.D.Cal.2008), was later vacated.   Moreover, Courts within this district have routinely cited to and relied upon the 2008 FCC Order. See, e.g., Osorio v. State Farm Bank, F.S.B., 859 F.Supp.2d 1326, 1329 (S.D.Fla.2012); Breslow v. Wells Fargo Bank, N.A., 857 F.Supp.2d 1316, 1318 (S .D. Fla.2012); Cavero v. Franklin Collection Serv. Inc., No. 11–22630–CIV, 2012 WL 279448, at *3 (S.D.Fla. Jan. 31, 2012); Hicks, 2008 Wl 5479111, at *5. Plaintiff’s citation of Miller v. F.C.C., 66 F.3d 1140 (11th Cir.1995), for the proposition that the 2008 FCC order is non-binding in the Eleventh Cir-cuit is highly misleading. In Miller, the Eleventh Circuit merely held that it could not review an FCC declaratory ruling because the plaintiffs had failed to present an actual case or controversy. 66 F.3d at 1146. The court’s statement that “it is axiomatic that Congress has not delegated, and could not delegate, the power to any agency to oust state courts and fed-eral district courts of subject matter jurisdiction” is purely dicta and did not impact the court’s resolution of the matter. Id. at 1144. Accordingly, the Court declines to construe this case to hold that the 2008 FCC order is “nonbinding in the Eleventh Circuit,” as Plaintiff requests. See Mem. at 14; Reply at 5. Turning to Plaintiff’s argument that consent is not an issue because “Defendant has not produced any evidence of consent,” while it is true that CCS will ultimately bear the burden of establishing prior express consent, at the class certification stage, the burden is on the Plaintiff to establish the Rule 23 factors. See Gene & Gene, LLC, 541 F.3d at 329 (“To be sure, the burden is on [the plaintiff] Gene to show that the require-ments for class certification are satisfied.”). The Court finds that at trial, the consent of each purported class member would be at issue. Plaintiff has failed to articulate why consent would not be an individualized issue. *5 Finally, in a notice of supplemental authority filed on October 15, 2012 [DE 143], Plaintiff directed the Court to Meyer v. Portfolio Recovery Associates, LLC, 696 F.3d 943 (9th Cir.2012), a recent Ninth Circuit Court of Appeals decision, where the appellate court found that a district court did not abuse its discretion in certifying a TCPA class. 696 F.3d at 948. In Meyer, the defendant argued that class certification was inappropriate because “some debtors might have agreed to be contacted at any telephone number, even telephone numbers obtained after the original transaction.” 696 F.3d at 948. The Ninth Circuit held that this was a non-issue pursuant to an FCC ruling which provides that “consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.” Id. Thus, because the Ninth Circuit did not address the broader issue of whether individualized issues of consent generally preclude class certification, this case does not persuade the Court that Plaintiff is entitled to class certification.