SEBASTIAN CORDOBA, individually and on behalf of all others similarly situated, Plaintiff - Appellee,
DIRECTV, LLC, individually and as successor through merger to DIRECTV, Inc., Defendant-Appellant, JOHN DOE 1, et al., Defendants.
from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:15-cv-03755-MHC
MARCUS and BLACK, Circuit Judges, and RESTANI, [*] Judge.
MARCUS, CIRCUIT JUDGE.
defendants in this class action have appealed from the
district court's certification of a class of plaintiffs
who claimed 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."
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 list, in violation of FCC regulations.
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.
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 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.
Telephone Consumer Protection Act was enacted in 1991
because, as Congress put it, "[m]any consumers [were]
outraged over the proliferation of intrusive, nuisance
[telemarketing] calls to their homes." Mims v. Arrow
Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (quoting the
Telephone Consumer Protection Act of 1991, Pub. L. No.
102-243, § 2, 105 Stat. 2394, 2394). In particular,
Congress noted that "[a]utomated or prerecorded
telephone calls made to private residences . . . were rightly
regarded by recipients as 'an invasion of
privacy.'" Id. (quotation omitted).
to exceptions not pertinent here, the TCPA principally
outlaws four practices. First, the Act makes it unlawful to
use an automatic telephone dialing system or an artificial or
prerecorded voice message, without the prior express consent
of the called party, to call any emergency telephone line,
hospital patient, pager, cellular telephone, or other service
for which the receiver is charged for the call. See
47 U.S.C. § 227(b)(1)(A). Second, the TCPA forbids using
artificial or prerecorded voice messages to call residential
telephone lines without prior express consent. §
227(b)(1)(B). Third, the Act proscribes sending unsolicited
advertisements to fax machines. § 227(b)(1)(C). Fourth,
it bans using automatic telephone dialing systems to engage
two or more of a business' telephone lines
simultaneously. § 227(b)(1)(D)." Id. at
TCPA also authorized the FCC to promulgate regulations
"concerning the need to protect residential telephone
subscribers' privacy rights to avoid receiving telephone
solicitations to which they object." 47 U.S.C. §
227(c)(1). The FCC was instructed by Congress to consider
various approaches, "including the use of electronic
databases, telephone network technologies, special directory
markings, industry-based or company-specific 'do not
call' systems, and any other alternatives."
Id. § 227(c)(1)(A). The FCC promulgated
regulations creating a national do-not-call list and
requiring telemarketers to maintain their own internal
do-not-call lists. Both of these provisions are involved in
this case. The National Do Not Call Registry is maintained by
the federal government, and telemarketers are prohibited from
soliciting residential telephone subscribers who have
registered their numbers on the list. 47 C.F.R. §
64.1200(c)(2). Telemarketers can avoid liability for any
violation if they can show that the violation was a mistake
and that they meet minimum compliance standards. Id.
do-not-call lists are created and maintained by companies
engaged in telemarketing. The main FCC regulation at issue
today provides that "[n]o person or entity shall
initiate any call for telemarketing purposes to a residential
telephone subscriber" without "institut[ing]
procedures for maintaining a list of persons who request
not to receive telemarketing calls made by or on behalf
of that person or entity." Id. §
64.1200(d) (emphasis added). The FCC requires that
telemarketers have a written policy for maintaining an
internal do-not-call list, train their personnel on its
"existence and use," put people on the list when
they ask, and refrain from calling individuals on the list
for five years after a request is made. See id. The
TCPA creates a private right of action for anyone who
receives more than one call within a year from the same
entity in violation of these regulations, and plaintiffs can
recover $500 in statutory damages for each violation.
See 47 U.S.C. § 227(c)(5). The statute provides
an affirmative defense for defendants who "established
and implemented, with due care, reasonable practices and
procedures to effectively prevent telephone solicitations in
violation of the regulations," but it also makes
available treble damages against a defendant who
"willfully or knowingly violated the regulations."
Id. "[U]nder federal common-law principles of
agency, there is vicarious liability for TCPA
violations." Campbell-Ewald Co. v. Gomez, 136
S.Ct. 663, 674 (2016).
complains that DIRECTV hired Telecel Marketing Solutions,
Inc., sometime around 2003 to market its goods and services
via telephone. Between March 27, 2015, and March 3, 2016,
Telecel placed over 60, 000 marketing calls on
DIRECTV's behalf to 24, 566 unique telephone
numbers. Cordoba personally began receiving unsolicited calls
from DIRECTV in July 2014. According to the complaint, he was
called at least eighteen times between April and November of
2015, even though his number appeared on the National Do Not
Call Registry and even though he repeatedly told Telecel that
he did not want to be called. The owner of Telecel admitted
that the company did not maintain an internal do-not-call
list (plainly a violation of FCC regulation), and said that
its practice was to simply delete individuals' contact
information from its database if they asked not to be called.
Cordoba says that he went so far as to write to DIRECTV and
request that they cease calling him. DIRECTV responded and
promised that they would no longer contact him, but still the
commenced this class action lawsuit in the United States
District Court for the Northern District of Georgia, alleging
that DIRECTV and Telecel have violated several aspects of the
TCPA's regulatory scheme. He sought to represent two
classes. The first class -- and the one at issue today in
this interlocutory appeal -- was defined as including
"all individuals who received more than one
telemarketing call from Telecel on behalf of DIRECTV on or
after October 27, 2011," during which time Telecel
failed to adhere to the internal do-not-call list regulations
set out in 47 C.F.R. §§ 64.1200(d)(1)-(6). Based on
call data produced during discovery, Cordoba said this class
includes at least "16, 870 individuals who received a
total of 52, 810 calls." The second class -- which is
not involved in this appeal -- was defined as all individuals
whose telephone numbers were on the National Do Not Call
Registry but nevertheless received more than one DIRECTV
marketing call from Telecel on or after October 27, 2011.
This class consisted of 926 individuals who received a total
of 2, 829 calls.
district court certified both classes. First, the court held
that the members of both classes had standing because an
unsolicited phone call is an injury in fact and that the
proposed classes were ascertainable. The court then
determined that each of the requirements of Rule 23(a) --
numerosity of parties, commonality of
issues, typicality of the class representative's
claims, and adequacy of representation -- was
satisfied. Since Cordoba's claim was for money damages,
the court moved on to Rule 23(b)(3), which further requires
that common questions "predominate over any questions
affecting only individual members" and that a class
action be "superior" to other methods of
adjudication. Fed.R.Civ.P. 23(b)(3). The trial court
determined that any individual issues would be "amenable
to resolution by fairly 'simple and objectively
verifiable means, '" and that class litigation was
superior due to the relatively small amount of damages
available in an individual TCPA action.
then sought relief in this Court, filing a petition pursuant
to Rule 23(f), seeking permission to appeal on an
interlocutory basis from the district court's order
certifying the classes. See Fed.R.Civ.P. 23(f)
("A court of appeals may permit an appeal from an order
granting or denying class-action certification . . .
."); see also Prado-Steiman ex rel. Prado v.
Bush, 221 F.3d 1266, 1274-76 (11th Cir. 2000) (setting
out guideposts for determining whether a 23(f) petition ought
to be granted). DIRECTV's petition asked for review of
two questions, but we granted permission to appeal on only
one of them. That question, which we now address, is
"[w]hether a recipient of a telemarketing call who did
not request to be placed on the caller's internal DNC
[do-not-call] list has standing under Article III to maintain
a claim that the caller failed to institute appropriate
internal DNC list procedures."
23(f) limits our review to the district court's order
granting or denying class certification. We review the class
certification order for abuse of discretion. Vega v.
T-Mobile USA, Inc., 564 F.3d 1256, 1264 (11th Cir.
2009). "A district court abuses its discretion if it
applies an incorrect legal standard, follows improper
procedures in making the determination, or makes findings of
fact that are clearly erroneous." Id. (quoting
Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir.
2004), abrogated in part on other grounds by Bridge v.
Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)). And
we review issues of fact for clear error and issues of law de
class to be certified, the named plaintiff must have standing
and the putative class must satisfy both the requirements of
Federal Rule of Civil Procedure 23(a) and the requirements found
in one of the subsections of Rule 23(b). City of
Hialeah v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002).
The district court certified this class under Rule 23(b)(3),
which permits class certification when "the court finds
that the questions of law or fact common to class members
predominate over any questions affecting only individual
members" and "that a class action is superior to
other available methods for fairly and efficiently
adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).
start with the question on which we granted review, whether
the members of the internal do-not-call list class who did
not ask to be put on the internal do-not-call list have
standing. Article III extends "'[t]he judicial power
of the United States' . . . only to 'Cases' and
'Controversies.'" Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (quoting U.S.
Const. art. III, §§ 1-2). Standing doctrine is
"rooted in the traditional understanding of a case or
controversy" and "limits the category of litigants
empowered to maintain a lawsuit in federal court to seek
redress for a legal wrong"; it "'serves to
prevent the judicial process from being used to usurp the
powers of the political branches' and confines the
federal courts to a properly judicial role."
Id. (quoting Clapper v. Amnesty Int'l
USA, 568 U.S. 398, 408 (2013)) (citations omitted). The
three requirements for Article III standing are familiar: the
plaintiff must allege that he suffered an "injury in
fact" that is "concrete and particularized"
and "actual or imminent"; that injury must be
"fairly traceable to the challenged action of the
defendant"; and it must be "likely . . . that the
injury will be redressed by a favorable decision."
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992) (quotation omitted and alterations adopted). The
plaintiff bears the burden of establishing each element.
Id. DIRECTV claims that the unnamed class members
who did not ask Telecel to stop calling cannot satisfy either
of the first two prongs of the analysis -- injury in fact or
first says that the absent class members lack standing
because they have not suffered an injury in fact under
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). In
Spokeo, the Supreme Court explained that
"Article III standing requires a concrete injury even in
the context of a statutory violation." Id. at
1549. In other words, plaintiffs do not "automatically
satisf[y] the injury-in-fact requirement whenever a
statute" grants them the right to sue; they still must
allege a "concrete" harm that is more than a
"bare procedural violation." Id. To be
concrete, an injury "must be 'de