Federal Court Denies Class Certification in TCPA Suit Against Auto-Lender Exeter Finance

In Billy Ginwright v. Exeter Finance Corp., No. 8:16-cv-565-TDC, ECF No. 107, 2017 U.S. Dist. LEXIS 194739, 2017 WL 5716756 (D. Md. Nov. 28, 2017), a federal district court recently denied Plaintiff's motion to certify a class action under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., for calls allegedly placed to cellular telephone numbers by Defendant Exeter Finance LLC (f/k/a Exeter Finance Corp.). The Court denied certification based on its conclusion that commonality and predominance were absent from the class, because the central issue in the case - whether Exeter obtained (and maintained) consent to place the calls - "would differ on a case-by-case basis" due to individualized inquiries that could not be resolved "with a single classwide answer."

Exeter is an automobile finance company that purchases retail installment contracts from car dealerships around the country and then services customers' accounts. Plaintiff, an Exeter customer, brought suit in February 2016 claiming that Exeter had violated the TCPA because he had never given consent for Exeter to call his cellphone number, even though Plaintiff had provided his cellphone number on his credit application at the dealership where he purchased his vehicle. Plaintiff also sought to represent other individuals whom Exeter had called on their cellular telephones, arguing that Exeter similarly lacked consent to call their cellphones.

Exeter, who was represented by attorneys from Burr & Forman LLP, opposed Plaintiff's motion for class certification. Exeter pointed out that, while it seeks to obtain and maintain consent from all of its customers, Exeter's relationships with dealerships around the country meant that there was no "standard form document" for each customer. Instead, the credit application forms and contract documents vary from dealer to dealer, and require an individualized inquiry to determine the specific terms of a customer's agreement. In addition to these origination documents, Exeter presented evidence that it verifies a customer's telephone numbers and obtains consent during subsequent telephone conversations, which would also need to be reviewed and analyzed to address the consent issue.

In addition to opposing class certification, Exeter filed a motion for summary judgment regarding Plaintiff's individual TCPA claim, arguing that the undisputed evidence established that Plaintiff had granted prior express consent to receive calls from Exeter and so, at most, Plaintiff's claim should turn on whether Plaintiff had ever revoked his consent to be called. Plaintiff opposed Exeter's motion, arguing that the Court should decide the class certification issue first, and also disputing that Plaintiff had ever provided consent to be called.

The Court began by addressing the summary judgment motion, agreeing with Exeter that consideration of the individualized issues regarding Plaintiff's facts "shed[] light on issues relevant to the disposition of the Motion for Class Certification." After considering FCC rulings and federal court decisions from around the country, the Court agreed that "Exeter clearly received Ginwright's prior express consent to call his cell phone about his debt" because Plaintiff had provided the phone number on his credit application. The Court rejected Plaintiff's arguments that the phone number had to be provided directly to Exeter (as opposed to an intermediary, such as the dealership) and also rejected the contention that Plaintiff needed to specifically consent to autodialed calls. However, as for whether Plaintiff ever revoked consent, the Court reviewed the evidence and concluded that "the record does not establish definitively whether or when such revocation took place." As a result, the Court declined to grant summary judgment due to the disputed facts regarding Plaintiff's revocation.

Turning to Plaintiff's class certification motion, the Court noted several fatal flaws in the proposed class that precluded certification under Rule 23. First, with respect to commonality, the Court rejected Plaintiff's proposed common questions, finding that the issues Plaintiff had identified were not "apt to drive the resolution of the litigation." Instead, the Court observed that the issue of consent was central to the claims of Plaintiff and the putative class, but could not be resolved by common questions and without degenerating into mini-trials of each individual's claim. Next, the Court noted that, even if Rule 23(a) were satisfied, Plaintiff was unable to satisfy any of the provisions of Rule 23(b). The Court first addressed predominance under Rule 23(b)(3) and observed that the summary judgment arguments regarding Plaintiff's individual claim had "revolve[d] around individualized questions of consent and the revocation of consent," which demonstrated that the same individualized consent issues would predominate over any common issues for the proposed class. The Court noted that Exeter's credit applications and contracts for putative class members would vary, because they contained different terms and conditions, and that (in any event) Exeter also obtained consent in oral conversations that would likewise "differ on a case-by-case basis." As a result, the Court concluded that Plaintiff had failed to establish predominance under Rule 23(b)(3). The Court also addressed and quickly dismissed Plaintiff's alternate arguments for certification under Rule 23(b)(1) and (2). The Court found no risk of incompatible results that would have an adverse practical effect on other class members, because each person's claim would primarily turn on their consent (an individualized issue). And, likewise, the Court rejected Plaintiff's proposed injunctive relief class because, among other reasons, Plaintiff had no need for an injunction, any injunction for the putative class would only be appropriate if Exeter's calls had violated the TCPA (i.e., if they were made without consent), and because the primary relief sought by Plaintiff's TCPA claim was monetary damages. Based on the foregoing, the Court concluded Plaintiff had failed to satisfy any of Rule 23(b)'s prerequisites.

This case represents a significant victory not only for Exeter Finance LLC, but also for auto-lenders and other businesses in the consumer-credit industry who have seen a dramatic uptick in TCPA filings in recent years.

Posted in: TCPA
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