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Cordoba v. DIRECTV, LLC

United States Court of Appeals for the Eleventh Circuit

November 15, 2019, Decided

No. 18-12077

Opinion

 [*1263]  MARCUS, Circuit Judge: [**2] 

The defendants in this class action have appealed from the district court's certification of a class of plaintiffs who claimed  [*1264]  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 Telecel on behalf of DIRECTV while it failed to maintain an internal do-not-call [**3]  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 [**4]  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 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.

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942 F.3d 1259 *; 2019 U.S. App. LEXIS 34146 **; 105 Fed. R. Serv. 3d (Callaghan) 56; 28 Fla. L. Weekly Fed. C 605; 2019 WL 6044305

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.

Prior History:  [**1] D.C. Docket No. 1:15-cv-03755-MHC. Appeal from the United States District Court for the Northern District of Georgia.

Cordoba v. DIRECTV, LLC, 320 F.R.D. 582, 2017 U.S. Dist. LEXIS 125486 (N.D. Ga., July 12, 2017)

Disposition: VACATED AND REMANDED.

CORE TERMS

district court, class member, telemarketing, do-not-call, telephone, traceable, injury in fact, regulations, concrete, class action, predominate, fax, phone call, class certification, absent class members, named plaintiff, recipient, member of the class, standing to sue, individualized, certification, unsolicited, questions, lack standing, Registry, federal court, unwanted, common issue, residential, certifying

Civil Procedure, Class Actions, Prerequisites for Class Action, Predominance, Appeals, Standards of Review, Abuse of Discretion, Special Proceedings, Appellate Review, Clearly Erroneous Review, De Novo Review, Questions of Fact & Law, Prerequisites for Class Action, Superiority, Constitutional Law, Case or Controversy, Standing, Elements, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Class Members, Named Members, Particular Parties, Preliminary Considerations, Justiciability, Standing, Certification of Classes, Absent Members, Commonality