Certified Class Members Must Prove Class Membership

Typically a member of a certified class in a TPCA case need not do anything to become a class member. The named plaintiff does the work of identifying potential class members and providing them with notice. The people receiving notice will automatically be a class member unless they request not to be. They don’t have to do anything to prove their class membership.

The Colorado District Court just changed that, at least for members of a Do-Not-Call (“DNC”) class.¹ Per the court, a potential member of such a class must now provide proof that they are actually a class member. The court’s decision not only will likely limit the number of class members, but potentially made the class uncertifiable.

Klassen v. SolidQuote LLC

The case is Klassen v. SolidQuote LLC.² There, the plaintiff alleged that Digital Media Solutions (“DMS”) and SolidQuote violated section 227(c) of the TCPA. It is a violation of that section to make more than one telephone solicitation calls, within a 12-month period, to a number registered on the National Do Not Call Registry (“NDNCR”). The plaintiff alleged that DMS made nine telephone solicitation calls to plaintiff’s phone number while it was registered on the NDNCR. Allegedly, DMS made the calls on behalf of co-defendant SolidQuote.

The Class

The plaintiff sought to represent a DNC class. Per the plaintiff’s certified class definition, significantly, a class member’s phone number had to be registered on the NDNCR.

Challenging of the Class Definition

A plaintiff must have a specifically defined and proper class definition. Without it, the class may not be certifiable. A case cannot continue as a class action unless the class is certified.

SolidQuote, in an attempt to quickly defeat the class portion of the case, moved to strike the plaintiff’s class. Specifically, it challenged the plaintiff’s class definition. SolidQuote argued, correctly, that the class definition was overbroad.

A person must have standing to receive TCPA statutory damages for a DNC violation under 227(c). Significantly, a person lacks standing unless they were the person that registered their phone number on the NDNCR.³

The defendants argued that plaintiff’s class definition was too broad because it failed to account for that requirement. Without addressing that fact, the class would improperly include persons who did not register their own phone number on the NDNCR.

The Court’s Decision

When dealing with an improper class definition, a court can strike or modify the definition. Here, the court agreed with SolidQuote. The court, instead of striking the definition, modified it to read “the person’s telephone number was registered by the person on the [NDNCR][.]” Thus, the court properly limited the DNC class to persons that registered their own phone numbers on the NDNCR.

Significantly, the court noted that its modification meant that persons potentially eligible to be class members would have to certify that they registered their own numbers. Thus, potential class members will have to take the step of proving they are actually a class member.

Potential Effects of the Court’s Modification of the Class Definition

The court’s modification and resulting class member certification requirement could have two significant impacts. Both are favorable to SolidQuote.

• Less Class Members

The first is there is likely to be fewer certified class members. The burden is now on potential class members to prove their class membership. Specifically, they will have to provide a certification, likely in the form of an affidavit, swearing that they registered their own number on the NDNCR. This will surely result in fewer class members.

This is a Rule 23 class. A person eligible to be a member of a Rule 23 class typically doesn’t have to do anything to become a class member. The named plaintiff does the work of identifying the class members and providing notice to them. The only time a class member may have to do anything is when it is time for them to collect their portion of any obtained class damages.

Here, per human nature, it is less likely that people will become class members because they actually have to do something, as opposed to nothing.

• An Uncertifiable Class

Second, the court potentially made the class uncertifiable. Now, any potential class member will have to provide an affidavit swearing that they did their own NDNCR registering.

There is a line of cases holding that such individual class member affidavits are improper and the need for them is grounds for denying class certification. Under those cases, the need for such affidavits means there is at least one issue requiring individual inquires. The necessity of individual inquiries is itself grounds for denying class certification.

Per those cases, the affidavits also violate a defendant’s due process rights. Such affidavits typically involve a plaintiff swearing to something that happened years ago. That, coupled with the TCPA’s statutory damages providing significant incentive for someone to be a class member, raises credibility issues. Given the credibility issues, a defendant’s due process rights entitle it to cross examine each class member regarding what they swore to in their affidavit. But a defendant does not have that opportunity in a class action case. Thus, that line of cases reasons that the violation of the defendant’s due process rights is grounds for denying class certification. Therefore, in Klassen, the court’s modification of the class definition, resulting in the need for individual class member affidavits, may end up being why the class is uncertifiable.

Klassen is worth keeping an eye on, especially if the parties get to class-certification briefing. In any TCPA class case involving a DNC class, each class member must have done their own NDNCR registering. If other courts agree with this holding in Klassen, it raises the possibility that a DNC class is never certifiable.