In Hicks v. Client Services, Inc. (S.D.Fla 2008) Case No. 07-61822-CIV-WPD, District Court Judge Dimitrouleas addressed whether a TCPA class can be certified for
(i) all Florida citizens (ii) who received any telephone call from Defendant to said person’s cellular telephone service made (iii) through the use of any automatic telephone dialing system or an artificial or pre-recorded voice, (iv) during the four year period prior to the filing of the Second Amended Complaint in this matter through the date of class certification.
First, the District Court stated in dicta that the defendant’s auto-dialer fell within TCPA regulation:
While Defendant has protested that its calling device is not an “automatic telephone dialing system” and has described it as “non-predictive”, the more detailed description its executive gives under deposition suggests that it would fall under the type of devise the FCC contemplated in its ruling on predictive dialers. Mr. Funke answered affirmatively that once the numbers are entered into the dialer, the device will continue to dial numbers regardless of whether live employees are present, and if a live person answers, it will contact that person with the Defendant’s employees…This type of device, which calls a set of numbers without human intervention, likely falls within the definition of “automatic telephone dialing systems”. However, because this Court finds that certification of the TCPA claim is inappropriate for other reasons below, it will not rule on this issue.
Next, the District Court next addressed class certification of the TCPA class as defined, finding that individualized issues of proof relating to consent precluded class certification.
Several courts have held that proof of consent is an essential individual issue under the TCPA that makes class certification inappropriate. E.g. Gene & Gene, LLC v. BioPay, LLC 541 F.3d 318, 326-27 (5th Cir. 2008); Levitt v. Fax.com 2007 U.S.Dist. LEXIS 83143 at *11-13 (D.Md. May 25, 2007); Kenro, Inc. v. Fax Daily, Inc. 962 F.3d 1162, 1169-70 (S.D.Ind. 1997) (ruling that the consent issue made class certification inappropriate because of lack of typicality, commonality, and predominance); Forman v. Data Transfer, Inc. 164 F.R.D. 400, 404 (E.D.Pa. 1995) (same). Plaintiff attempts to distinguish Gene & Gene by noting that the defendants in that case provided evidence of consent, but Defendant in this case has not. (541 F.3d. at 328-29). While defendant’s evidence may have played a role in Gene & Gene, it does not appear to have played a role in the other decisions cited above [citations omitted]. One court ruled in favor of class certification specifically because the defendant in that case asserted that consent from the class members’ voluntary inclusion in the single database from which the defendant obtained their numbers. Kavu, Inc. v. Omnipak Corp. 246 F.R.D. 642, 647-48 (W.D.Wash. 2007). Those particular circumstances lent themselves to resolving the consent issue on a class-wide basis; they do not exist here. ¶ Plaintiff claims that she will be able to show at trial the lack of express consent by herself and the class members. She does not, however, describe how she intends to do so without the trial degenerating into mini-trials on consent of every class member.