Antitrust Law Daily Certified class vacated in TCPA suit against DirecTV
Monday, November 18, 2019

Certified class vacated in TCPA suit against DirecTV

By Matt Phifer, J.D.

Individual on Do-Not-Call registry can bring case against DirecTV and the third-party performing telemarketing for them, but class may include people who lack standing.

DirecTV and Telecel Marketing Solutions, a telemarketing company it contracted, won a victory in a class action suit over their telemarketing practices as the U.S. Court of Appeals for the Eleventh Circuit denied certification of a class of consumers that allegedly received calls from Telecel. The court found that while the named person has a reasonable complaint against the companies for calling him despite being on the National Do-Not-Call Registry and repeatedly asking not to be called, many of the 16,870 people that are part of the class may not have standing (Cordoba v. DirecTV, LLC, November 15, 2019, Marcus, S.).

The named plaintiff, Sebastian Cordoba, is on the National Do-Not-Call Registry, but said he was still called by Telecel on behalf of DirecTV at least eighteen times between April and November 2015. He repeatedly asked to be taken off the list and even called DirecTV, who said they would not call anymore. But the calls continued.

The Federal Communications Commission (FCC) keeps a National Do-Not-Call Registry that people can sign up for to no longer receive telemarketing calls. Companies cannot call people on the national registry and are required to keep internal Do-Not-Call lists. Telecel admitted that it did not keep an internal Do-Not-Call registry.

The district court certified two classes for the lawsuit, but only one class was in question before the appellate court. This class was made up of people who received more than one call by Telecel on behalf of DirecTV on or after October 27, 2011 when Telecel did not use an internal Do-Not-Call list.

DirecTV argued that the unnamed class members who did not ask Telecel to stop calling do not meet two prongs required to have standing to sue. Those prongs are that the people suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent" and that the injury is "fairly traceable to the challenged action of the defendant."

The court said that receiving more than one phone call can be considered an injury-in-fact. But the problem is whether the injury is traceable to the actions of DirecTV and Telecel. If people in the class are not on the National Do-Not-Call Registry and never asked not to be called again when Telecel called, then Telecel’s violations don’t matter because they would have called those people even if they had properly kept an internal Do-Not-Call list.

The lower court would have to determine whether absent class members have standing before providing relief. That means individual questions would predominate over class-wide issues. The court was careful to say it was not ruling that a court "is required to ensure that the class definition does not include any individuals who do not having standing before certifying a class" as that would promote "fail-safe" classes. But at some point, each individualized plaintiff in the class would have to provide some type of individualized proof of standing.

The case is No. 18-12077.

Attorneys: Jonathan D. Selbin (Lieff Cabraser Heimann & Bernstein, LLP) for Sebastian Cordoba. Andrew John Pincus (Mayer Brown, LLP) and Ava J. Conger (Kilpatrick Townsend & Stockton, LLP) for DirecTV, LLC.

Companies: DirecTV, LLC

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