Bennett v. Boyd Gaming Corporation
Order re: 79 MOTION to Approve Settlement Agreement APPROVAL OF CLASS ACTION filed by Jason Bennett. Plaintiff is to file and serve by 1/7/16 a supplement to this motion as set out. Defendant is to file and serve by 1/21/16 its response to the plaintiff's supplemental filing. Plaintiff's miscellaneous deadline set for 1/7/2016; Defendant's miscellaneous deadline set for 1/21/2016. Signed by Chief Judge William H. Steele on 12/7/2015. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JASON BENNETT, etc.,
BOYD BILOXI, LLC, etc.,
) CIVIL ACTION 14-0330-WS-M
This matter is before the Court on the plaintiff’s motion for preliminary
approval of class action settlement agreement. (Doc. 79). The plaintiff and the
defendant have each filed a brief in support of the motion. (Docs. 80, 85).
The second amended complaint, (Doc. 83), alleges a violation of the
Telephone Consumer Protection Act (“the Act”), and specifically a regulation
promulgated pursuant thereto. The second amended complaint challenges the
defendant’s practice of calling persons, without their prior express written consent,
by means of an automatic telephone dialing system or with the use of a prerecorded voice message, to deliver a message including “telemarketing” or
“advertisement” as defined by the regulation.
Before reaching the request for preliminary approval of the proposed
settlement, the Court must resolve the threshold issue of whether a class should be
certified. The parties seek certification under Rules 23(a) and 23(b)(3). The
requirements of these rules apply with at least equal vigor in the settlement-class
Confronted with a request for settlement-only class
certification, a district court need not inquire whether the case, if
tried, would present intractable management problems, …, for the
proposal is that there is to be no trial. But other specifications of
the Rule – those designed to protect absentees by blocking
unwarranted or overbroad class definitions – demand undiluted,
even heightened, attention in the settlement context. Such attention
is of vital importance, for a court asked to certify a settlement class
will lack the opportunity, present when a case is litigated, to adjust
the class, informed by the proceedings as they unfold.
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); accord Ortiz v.
Fibreboard Corp., 527 U.S. 815, 848-49 (1999) (“When a district court, as here,
certifies for class action settlement only, the moment of certification requires
heightened attention … to the justifications for binding the class members.”)
(internal quotes omitted).
Subject to certain exceptions not presently relevant, the class proposed by
the settlement would consist of “all persons who, since October 16, 2013 through
the date the class is certified, received a telephone call to a residential or cellular
telephone number initiated by, on behalf of or at the direction of Boyd Biloxi
which used an artificial and/or pre-recorded voice message or was placed by an
automatic telephone dialing system.” (Doc. 79-1 at 8). The Court notes that this
is a substantially more expansive class than that requested in the first amended
complaint, (Doc. 23 at 9), in at least the following respects: (1) it reaches both
residential and cellular phones, not just cellular; (2) it reaches calls placed both by
artificial and/or pre-recorded voice message and those placed by automatic
dialing, not just calls placed by automatic dialing; (3) it reaches all calls, not just
calls containing “advertisement” or “telemarketing”; and (4) it reaches all persons
that received the described calls, not just those that received such calls without
having given prior express written consent. This expanded class definition stems
from the second amended complaint, (Doc. 83 at 7), which was filed with the
defendant’s blessing in association with the instant motion.1
The Court does not suggest that a settlement class can never be more
expansive than the class sought by the plaintiff, but it is unusual for a defendant
The docket entry description provided by the plaintiff states that the purpose of
the second amended complaint is to “narrow[w] the scope of the putative class.” It
appears, however, to have accomplished exactly the opposite.
voluntarily to give more than a plaintiff has demanded, and such generosity might
be prompted by considerations that work to the detriment of absent class members.
While the Court presently draws no such firm conclusion, this circumstance
underscores the Supreme Court’s admonition to scrutinize settlement classes
The Rule 23(a) requirements for certification of any class action are: (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy. The additional
requirements for certification under Rule 23(b)(3) are: (5) predominance; and (6)
superiority. Amchem, 521 U.S. at 613, 615. Despite the parties’ briefing, (Doc. 80
at 3-9; Doc. 85 at 4-5), several of these elements appear to be in question.
As to commonality, the plaintiff states there “are only two issues” in this
lawsuit and that they are common to all class members: whether the calls they
received constitute “advertising” and/or “telemarketing” and whether the class
members gave prior express written consent to receive the calls. (Doc. 80 at 4-5).2
No doubt these are questions that must be answered as to each class member, but
the plaintiff has not shown that the answer to these questions must be the same for
each class member. It would seem that whether any particular class member gave
prior express written consent would depend on what that class member did, and
the plaintiff has not suggested that all class members did the same thing; on the
contrary, he notes the defendant’s argument that class members gave consent “in a
variety of ways over time.” (Doc. 80 at 11). Similarly, whether a call constituted
advertisement or telemarketing under the governing regulation would seem to
depend on the content of the message, and the plaintiff has not attempted to show
that the messages – more than 400,000, (Doc. 80 at 10), spread over the relevant
two-year period and across the entire continent – never varied, or never varied in
any meaningful way. Nor has the plaintiff addressed the degree of variation in
resolution of a nominally common issue that may be tolerated before the question
The plaintiff adds “telephone solicitation” to this list, (id.), but that appears to lie
beyond the scope of the second amended complaint.
is no longer “common to the class” within the contemplation of Rule 23(a)(2). As
the plaintiff acknowledges, (Doc. 80 at 4), commonality requires that the action
“must involve issues that are susceptible to class-wide proof.” Murray v.
Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (emphasis added). The plaintiff has
failed to show that its identified common questions meet this standard.
As to typicality, the first amended complaint repeatedly restricts the
plaintiff’s claim to one involving calls to his cellular phone, and it is clear he
received no objectionable calls on his residential line, yet the proposed class
extends to persons receiving calls on residential lines. While it is not clear that
there is any meaningful legal difference between the two sorts of phone lines, the
plaintiff’s careful restriction of his claim and the previously proposed class to
cellular phones indicates that his claim might not be typical of claims regarding
residential lines. Likewise, if the messages received have varied over time and/or
space, it is not clear the plaintiff’s claim – restricted to a few calls over a fourmonth period – is typical of all or most class members. Finally, the defendant
itself questions whether the plaintiff’s claim is typical of those class members who
joined the rewards program by different methods. (Doc. 85 at 4-5). The plaintiff,
who ignores these tensions, has failed to show that his claim is typical of those of
As noted, the only legal claim in this lawsuit is that the defendant placed
telephone calls, by certain means and without prior express written consent, that
contained “telemarketing” or “advertisement” under the governing regulation.
The proposed class, however, is defined to include persons who received calls so
placed without their prior express written consent, regardless of whether the calls
they received contained telemarketing or advertisement, and the claims procedure
does not require any class member to demonstrate, or even assert, that the call(s)
he or she received constituted telemarketing or advertisement. (Doc. 79-1 at 16).
This appears to mean that any class member that received any pre-recorded or
automatically dialed call from the defendant for any purpose (e.g., notification of
an event, reminder of a deadline, request for payment) without prior express
written consent can recover in a lawsuit that targets only unlawful telemarketing
and advertisement. It is not immediately apparent how the plaintiff’s claim could
be typical of such a class member’s (non-existent) claim.3
As to adequacy, the same observations apply. Moreover, it is not certain
that the plaintiff has not proposed a class, and a class settlement, that
disadvantages certain class members to the benefit of the plaintiff and/or others in
effecting a settlement. For example, by (1) expanding the class to include persons
that received calls which did not include advertisement or telemarketing, and (2)
broadly releasing every conceivable claim related to the calls, (Doc. 79-1 at 7), the
plaintiff has structured a settlement in which persons with no viable claim in this
lawsuit, but with claims under other laws (for example, invasion of privacy and
other state claims, FDCPA and other federal claims), may lose all rights they
might otherwise have to pursue such claims. On the flip side, it is not clear how
the plaintiff has protected the interests of those with a viable claim by
simultaneously agreeing to both a fixed recovery fund and participation in that
fixed fund by persons with no viable claim in this lawsuit, thereby at least
potentially diluting the recovery of those with a viable claim. The Court does not
say that this situation reflects inadequacy of representation, only that the plaintiff
must come to grips with these and other issues if he hopes to persuade the Court to
certify the proposed class.4
Indeed, it is not clear that the Court may properly certify a class specifically
designed to include persons that could not possibly have a claim under the only legal
theory advanced in the lawsuit.
The Court is familiar with plaintiff’s counsel from other lawsuits, but it still
finds the plaintiff’s effort to establish counsel’s credentials to pursue this action as class
counsel somewhat pro forma. Unsworn assertions in brief, (Doc. 80 at 6), an eight-line
declaration, (Doc. 80-1), and a resume’ consisting mostly of a listing of reported cases,
(Doc. 80-2), is not the strongest showing imaginable. It certainly does not address the
factors that the plaintiff himself identifies as critical to the determination of the adequacy
of counsel. (Doc. 80 at 6).
As to predominance, the plaintiff cannot establish it without first
establishing commonality. The plaintiff asserts that predominance stems from the
prior-express-written-consent issue, (Doc. 80 at 7), but, as discussed above, he has
failed to show that this qualifies even as a common issue. The Court also reminds
the plaintiff that “the predominance criterion is far more demanding” than the
commonality requirement. Amchem, 521 U.S. at 623. The plaintiff stresses the
Amchem Court’s observation that predominance is satisfied in “certain cases
alleging consumer … fraud,” 521 U.S. at 624, but without demonstrating that this
is such a case. The advisory committee comments to which the Supreme Court
cited confirm that a consumer fraud case “may be unsuited for treatment as a class
action if there was material variation in the representations made or in the kinds or
degrees of reliance by the persons to whom they were addressed.” Fed. R. Civ. P.
23 advisory committee notes 1966 amendment. These are exactly the concerns
identified by the Court in noting the plaintiff’s failure to show that the telephone
messages were materially unvaried and that the existence vel non of prior express
written consent could be determined for the class as a whole without individual
The plaintiff says that class treatment is superior to other options due to
“the small amount of damages involved in each individual claim,” (Doc. 80 at 7),
and he describes the class members’ claims as “negative value claims,” where the
costs of litigation exceed expected individual recovery. (Id. at 8). But the plaintiff
has not shown this to be so. According to the second amended complaint, the Act
provides for a minimum recovery of $500 for each call in violation of the
regulation, and a maximum recovery of $1,500 for each such call. (Doc. 83 at 3).
The plaintiff identifies eight calls he received in violation of the Act and
regulation, (id. at 4-5), meaning his minimum recovery is $4,000 and his
maximum $12,000.5 Moreover, the Act provides for recovery of attorney’s fees,
which suggests no inability to attract counsel and no diminution of a plaintiff’s
recovery in order to compensate counsel. The plaintiff has failed to explain how,
or demonstrate that, he or any other class member holds a negative value claim
under these circumstances.
Rule 23 sets forth specific matters for a court to consider in weighing the
relative superiority of a class action compared with other mechanisms. Fed. R.
Civ. P. 23(b)(3)(A)-(D). The Alchem decision renders the last of these
considerations irrelevant in the settlement class context, 521 U.S. at 620, but the
others remain intact. The plaintiff, however, has not acknowledged or addressed
them, much less offered legal authority or analysis in support. Moreover, the
defendant “continues to believe that the class mechanism here may not constitute
the superior method to resolution of these legal issues.” (Doc. 85 at 5).
Finally, the defendant questions whether the plaintiff can establish that
“class members are identifiable,” which the defendant considers “a difficult and
cumbersome task in a world where cell phone subscribers frequently drop and
exchange cellular telephone numbers.” (Doc. 85 at 5). It is not clear how a class
action could be a superior mechanism if the identity of the class membership is
The Court has formed no fixed opinion whether any of the issues identified
herein – or any others that may be lurking6 – are or might be fatal to certification.
But the Court is of the firm opinion that the plaintiff has not come close to bearing
his burden of persuading the Court to certify the proposed settlement class.
According to the proposed settlement, the defendant is prepared to part with up to
Dividing the estimated number of calls by the estimated number of class
members, the average class member received about six calls and so has a claim for about
$3,000 to $9,000.
The parties should not assume there are no additional problems with their
presentation. The Court has addressed only those that seem most obvious on first
$12 million, up to $2 million of which is earmarked for plaintiff’s counsel, and the
plaintiff is prepared to bind almost 70,000 individuals to the parties’ proposed
resolution. There is certainly enough at stake to incentivize the plaintiff to identify
and obtain the evidence, and to research and effectively present the legal
argument, needed to support certification.
“[A] plaintiff still bears the burden of establishing every element of Rule
23, … and a district court’s factual findings must find support in the evidence
before it.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). The
plaintiff is thus ordered to file and serve, on or before January 7, 2016, a
supplement to the instant motion that presents whatever evidence and legal
argument he believes necessary and sufficient to bear his burden. The defendant is
ordered to file and serve, on or before January 21, 2016, its response to the
plaintiff’s supplemental filing.
DONE and ORDERED this 7th day of December, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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