Robertson v. ADA Alliance Data Systems, Inc.
Filing
304
ORDER: Plaintiffs Douglas B. Stalley, in his capacity as Personal Representative of the Estate of Gary Robertson, and Jeremiah Hallback's Third Motion for Class Certification 210 is DENIED. Defendant ADS Alliance Data Systems, Inc.'s Motion to Strike or Exclude Expert Declarations of Anya Verkhovskaya and Adam Sharp 226 is DENIED, without prejudice, as moot. Signed by Judge Virginia M. Hernandez Covington on 11/25/2013. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DOUGLAS B. STALLEY, in his
capacity as Personal Representative
of the Estate of Gary Robertson
and JEREMIAH HALLBACK, individually,
and on behalf of all those similarly
situated,
Plaintiffs,
v.
Case No. 8:11-cv-1652-T-33TBM
ADS ALLIANCE DATA SYSTEMS, INC.,
Defendant.
_________________________________/
ORDER
Plaintiffs
Douglas
B.
Stalley,
in
his
capacity
as
Personal Representative of the Estate of Gary Robertson,
and
Jeremiah
Hallback’s
Third
Motion
for
Class
Certification (Doc. # 210), filed on June 27, 2013, brings
this cause before the Court. Defendant ADS Alliance Data
Systems, Inc. responded in opposition to the Motion on July
29, 2013. (Doc. # 228). For the reasons below, the Court
denies the Motion.
I.
Background and Procedural History
Gary Robertson initiated this putative class action in
state
court
on
June
22,
2011,
against
Defendant
ADS
Alliance Data Systems, Inc. for alleged violations of the
Florida Security of Communications Act (FSCA), Fla. Stat. §
934.01 et seq. (Doc. # 2). The FSCA prohibits a party to a
conversation from recording the conversation – including
wire,
oral
consent
specific
of
or
all
electronic
parties
exceptions.
See
communications
to
the
Fla.
–
without
conversation,
Stat.
§§
with
934.01
et
the
some
seq.
Stalley and Hallback allege:
ADS services all of the accounts issued by WFNNB,
WFNB, and WFCB, [who issue private label and cobrand
credit
card
accounts]
which
includes
placing telephone calls to accountholders who
meet certain of their criteria (including having
a past due account and no pending bankruptcy on
file). . . . At all times material, ADS had and
continues to have a policy to record all calls
placed by and to its call center representatives.
(Doc. # 103 at ¶¶ 19-21). ADS removed the case to this
Court
on
July
25,
2011,
pursuant
to
the
federal
Class
Action Fairness Act. (Doc. # 1).
On October 24, 2011, Robertson moved to certify the
putative class. (Doc. # 20). However, while that motion was
pending, Robertson passed away (Doc. # 82), and Douglas
Stalley, as Personal Representative of Robertson’s estate,
was substituted as Plaintiff in this action. (Doc. # 87).
Stalley
subsequently
requested
leave
to
file
a
Second
Amended Complaint, stating, “The adding of Mr. Hallback is
2
proper in this case because the relief Mr. Hallback would
seek arises out of the exact same conduct as alleged by Mr.
Robertson in the prior complaints, i.e., being illicitly
recorded
by
Defendant
in
contravention
of
his
privacy
rights pursuant to Chapter 934, Florida Statutes.” (Doc. #
88 at 3). The Court granted the Motion (Doc. # 100), and
the Second Amended Complaint, filed on July 30, 2012, added
Jeremiah Hallback as a Plaintiff and included an amended
class definition. (Doc. # 103).
Stalley and Hallback filed a Notice to Correct Record
on December 26, 2012 (Doc. # 130), and an Amended Notice to
Correct Record on December 28, 2012 (Doc. # 131). In the
Amended Notice, Stalley and Hallback state that “Hallback .
. . previously represented to this Court [that he had] never
held any credit accounts with either World Financial Network
National Bank or World Financial Capital Bank [and had]
never been a debtor of any account serviced by Defendant.”
(Doc.
#
131
at
¶
6).
Stalley
and
Hallback
claim
that
unbeknownst to Hallback, “Hallback did have a credit account
with the Home Shopping Network . . ., which is a World
Financial Capital Bank account.” (Id. at ¶ 7). Representing
that the factual discrepancy has little importance, Stalley
and Hallback argue, “Essentially, the fact that Mr. Hallback
3
had a HSN account does not impact the claims in this case.”
(Id. at ¶ 11).
On January 16, 2013, ADS moved the Court to strike the
Notices (Doc. # 145), and on May 13, 2013, the Court granted
ADS’s Motion to Strike Unauthorized Papers. (Doc. # 196).
The Court found that “allowing [Stalley and Hallback] to,
effectively, amend the pleadings – as well as subsequently
filed motions – without leave of Court and without affording
Defendant an opportunity to object to such an amendment,
would be prejudicial to Defendant.” (Id. at 6-7). Stalley
and Hallback moved to amend the Second Amended Complaint
(Doc. # 197), and on June 4, 2013, the Court granted the
motion and denied as moot all pending motions (Doc. # 206).
Stalley and Hallback filed the Third Amended Complaint the
same day. (Doc. # 208).
Stalley and Hallback filed the instant Third Motion
for Class Certification on June 27, 2013. (Doc. # 210).
Defendant
filed
its
response
in
opposition
on
July
29,
2013. (Doc. # 228).
II.
Legal Standard
A district court has broad discretion in determining
whether
to
certify
a
class.
Washington
v.
Brown
&
Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.
1992); Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir.
4
1985).
“However,
with
great
power
comes
great
responsibility; the awesome power of a district court must
be exercised within the framework of [R]ule 23.” Vega v. TMobile USA, Inc., 564 F.3d 1256, 1264 (11th Cir. 2009)
(internal quotations omitted). In Valley Drug Co. v. Geneva
Pharms., Inc., 350 F.3d 1181 (11th Cir. 2003), the Eleventh
Circuit explained “Rule 23 establishes the legal roadmap
courts
must
follow
when
determining
whether
class
certification is appropriate.” Id. at 1187. “For a district
court to certify a class action, the named plaintiffs must
have standing, and the putative class must meet each of the
requirements specified in Federal Rule of Civil Procedure
23(a), as well as at least one of the requirements set
forth in Rule 23(b).” Vega, 564 F.3d at 1265 (internal
quotations omitted).
Under Rule 23(a), a class may be certified only if (1)
the class is so numerous that joinder of all members would
be impracticable; (2) there are questions of fact and law
common to the class; (3) the claims or defenses of the
representatives are typical of the claims and defenses of
the unnamed members; and (4) the named representatives will
be able to represent the interests of the class adequately
and fairly. Fed. R. Civ. P. 23(a). These requirements for
5
class
certification
requirements
of
are
generally
numerosity,
referred
commonality,
to
as
the
typicality,
and
been
the
adequacy. Vega, 564 F.3d at 1265.
“If
the
above
prerequisites
have
met,
district court then directs its inquiry into the propriety
of the class under one of the subsections of 23(b).” State
of Ala. v. Blue Bird Body Co., Inc., 573 F.2d 309, 315 (5th
Cir. 1978). Here, Stalley and Hallback present subsections
(b)(2) and (b)(3) as applicable. (Doc. # 126 at 11-12).
Certification is appropriate under Rule 23(b)(2) if “the
party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ.
P. 23(b)(2). Rule 23(b)(3) requires additional “findings:
(1) that common questions of law or fact predominate over
questions
affecting
only
individual
class
members
(‘predominance’); and (2) that a class action is superior
to other available methods for adjudicating the controversy
(‘superiority’).” Vega, 564 F.3d at 1265 (citing Fed. R.
Civ. P. 23(b)(3)).
The
burden
of
proof
to
establish
the
propriety
of
class certification rests with the advocate of the class,
6
and failure to establish any one of the four Rule 23(a)
factors and at least one of the alternative requirements of
Rule 23(b) precludes class certification. Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 615–18 (1997). “A district
court
must
conduct
a
rigorous
analysis
of
the
rule
23
prerequisites before certifying a class.” Vega, 564 F.3d at
1266. “Although the trial court should not determine the
merits of the plaintiffs' claim at the class certification
stage, the trial court can and should consider the merits
of the case to the degree necessary to determine whether
the
requirements
of
Rule
23
will
be
satisfied.”
Valley
Drug, 350 F.3d at 1188 n.15; Babineau v. Fed. Exp. Corp.,
576 F.3d 1183, 1190 (11th Cir. 2009) (same).
III. Analysis
Stalley
and
Hallback
offer
the
following
class
definition for certification:
Any and all persons who, on or after June 22,
2009 through the date of the final judgment in
this action (the “Class Period”)
(1) received an outbound telephone call from ADS,
at a telephone number associated with an address
in
Florida,
as
identified
by
the
records
maintained by ADS, spoke to an ADS representative,
and were an accountholder with WFNNB, WFNB, or
WFCB during the Class Period; or
(2) received an outbound telephone call from ADS,
at a telephone number associated with an address
7
in
Florida,
as
identified
by
the
records
maintained
by
ADS,
spoke
to
an
ADS
representative, and were domiciled or resided
with an accountholder of WFNNB, WFNB, or WFCB
during the Class Period.
(Doc. # 210 at 4-5). Because the FSCA prohibits a party to
a conversation from recording the conversation without the
consent of all parties to the conversation, Fla. Stat. §§
934.01 et seq., Stalley and Hallback further state that,
“To
the
extent
ADS
demonstrate
someone
consent
being
to
has
records
meeting
recorded,
this
such
that
affirmatively
definition
gave
individuals
prior
would
also
necessarily be excluded from the class.” (Id.).
A.
Ascertainability
“Before a district court may grant a motion for class
certification, a plaintiff seeking to represent a proposed
class must establish that the proposed class is adequately
defined and clearly ascertainable.” Little v. T-Mobile USA,
Inc.,
691
F.3d
1302,
1304
(11th
Cir.
2012);
see
also
Walewski v. ZeniMax Media, Inc., No. 6:11-cv-1178-ORL-28,
2012 WL 834125, at *3 (M.D. Fla. Jan. 30, 2012) report and
recommendation
adopted,
No.
6:11-cv-1178-ORL-28,
2012
WL
847236 (M.D. Fla. Mar. 13, 2012) aff’d, 502 F. App’x 857
(11th
Cir.
conduct
the
2012)
(“As
‘rigorous
is
clear,
analysis’
8
of
before
the
whether
Court
these
can
claims
meet the Rule 23 standards, it must first, by necessity,
define
the
Birmingham,
claims.”);
L.L.C.,
Grimes
264
v.
F.R.D.
Rave
659,
Motion
663-664
Pictures
(N.D.
Ala.
2010) (“Although not explicit in Rule 23(a) or (b), courts
have
universally
recognized
that
the
first
essential
ingredient to class treatment is the ascertainability of
the class. . . . Thus, the named plaintiff must define the
proposed class in a manner that adequately identifies its
members.
Who,
exactly,
are
they,
and
how
can
they
be
located?”); John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d
443,
445
(5th
Cir.
2007)
(“The
existence
of
an
ascertainable class of persons to be represented by the
proposed class representative is an implied prerequisite of
Federal Rule of Civil Procedure 23.”).
Courts
do
not
delve
into
the
merits
of
individual
claims at the class certification stage beyond the extent
necessary to determine whether the requirements of Rule 23
are satisfied. See
Babineau,
576
F.3d
prospective
on
at
class
determination
Valley Drug, 350 F.3d at 1188 n.15;
the
1190.
“To
do
representative[s]
merits
of
the
so
would
‘to
claims
allow
the
obtain
a
advanced
on
behalf of the class without any assurance that a class
action
may
be
maintained.’”
9
Grimes,
264
F.R.D.
at
665
(quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–
78
(1974)).
certified
if
For
that
the
reason,
court
must
a
class
engage
in
should
not
be
individualized
determinations of disputed fact in order to ascertain a
person’s membership in the class. See Grimes, 264 F.R.D. at
665 (“[C]lass certification is not appropriate if the court
is called on to engage in individualized determinations of
disputed fact in order to ascertain a person’s membership
in the class.”); Fisher v. Ciba Specialty Chem. Corp., 238
F.R.D. 273, 301 (S.D. Ala. 2006) (“Courts have declined to
certify a class where the proposed definition would require
individualized fact-finding to identify class members.”);
Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 269 (S.D.
Fla. 2003) (“A court should deny class certification where
the
class
definitions
are
overly
broad,
amorphous,
and
vague, or where the number of individualized determinations
required
to
determine
class
membership
becomes
too
administratively difficult.”); see also 5 James Wm. Moore
et
al.,
Moore's
Federal
Practice
§
23.21[3][c]
(3d
ed.
2008) (“A class definition is inadequate if a court must
make a determination of the merits of the individual claims
to determine whether a particular person is a member of the
class.”).
10
ADS
makes
two
ascertainability
compelling
of
the
arguments
proposed
class:
regarding
1)
in
the
order
to
determine membership in the class, the Court would have to
examine
that
each
individual’s
individual
had
circumstances
been
recorded
to
determine
without
his
or
if
her
consent; and 2) it is not clear how the actual recipient of
a call from ADS could be identified, and merely allowing
the intended recipient of the call to be a member of the
class
would
impermissibly
include
individuals
without
a
legitimate claim under the FSCA.
1.
ADS
Stalley
Individualized Inquiries to Determine Class
Membership
asserts
and
that
Hallback
the
class
would
definitions
require
that
proposed
the
Court
by
make
individualized factual determinations in order to ascertain
if an individual qualifies as a member of the class. (Doc.
# 228 at 6-7).
As
previously
stated,
the
FSCA
does
not
prohibit
recording communications when consent is given. Fla. Stat.
§ 934.01 et seq. For that reason, Stalley and Hallback have
included as a caveat to their proposed class definition
that
“To
the
demonstrate
extent
someone
ADS
has
meeting
records
this
11
that
definition
affirmatively
gave
prior
consent
to
being
recorded,
such
individuals
would
also
necessarily be excluded from the class.” (Doc. # 210 at 5).
Because consent is determinative for a claim under the
FSCA, ADS contends that membership in the proposed class
could only be ascertained by conducting a “mini-trial on
every claim to determine if the member ‘gave prior consent
to being recorded.’” (Doc. # 228 at 7). ADS argues that
such a “mini-trial” would essentially require the Court to
determine
class
membership
“by
[first]
adjudicating
the
liability of each class member’s individual claim.” (Id.).
ADS illustrates the need for “mini-trials” by pointing out
that
“[e]very
accountholder
relationship
between
is
by
governed
a
WFNB
or
written
WFCB
and
[credit
an
card]
agreement.” (Doc. # 228 at 4). ADS says that the credit
card agreement between WFNB and WFCB and their respective
cardholders
contains
a
privacy
statement
that
includes
ADS’s telephone monitoring policy. (Id.). ADS claims that
the credit card agreement “serves to both provide notice of
and
obtain
express
consent
to
call
recording.”
(Id.).
Accordingly, ADS maintains that to determine if a person is
a member of the class, the fact finder would need to first
determine if he or she was an accountholder.
12
ADS
further
asserts
determinations
could
distinguishing
between
that
an
individualized
much
become
the
more
complex
than
and
non-
accountholder
a
accountholder because there are many other ways that ADS
may
have
given
notice
and
obtained
consent
for
its
recording policy from a purported class member: “notice in
fact, notice by way of inbound calls to ADS that took place
prior
to
dealings
any
with
outbound
ADS,
calls,
general
notice
common
by
way
of
knowledge,
prior
consent
transferred from master to servant or agent, and many other
concepts.” (Doc. # 134 at 2).
ADS provides the following example to clarify the kind
of inquiry that might be required: “[A] person that placed
an inbound call to ADS prior to getting an outbound call
would be on notice of the recording policy by virtue of a
message given at the outset of every inbound call. From
that
point
forward,
notice
and
consent
would
be
constructive and a question of fact for a jury. . . .”
(Id.).
While
the
Court
makes
no
finding
regarding
the
merits of ADS’s argument regarding what might constitute
consent, the fact that the Court may be required to make
such a finding demonstrates that the proposed class is not
13
clearly ascertainable without resorting to individualized
factual inquiries.
Stalley and Hallback’s response to ADS’s argument is
twofold.
First,
agreements
contained
–
and
therein
they
counter
any
–
consent
are
that
to
between
the
be
credit
recorded
accountholders
card
that
is
and
the
banks that ADS services, not between the accountholders and
ADS
itself.
(Doc.
#
210
at
18).
Second,
Stalley
and
Hallback contend that because “ADS records all calls to
accountholders from the moment the line connects until the
call is terminated” and “does not automatically notify the
recipients of its outbound collection calls that the calls
are
recorded,”
there
“is
no
opportunity
to
provide
any
prior consent.” (Id. at 3).
However, even if the Court were to accept Stalley and
Hallback’s assertion that the credit card agreements do not
apply
to
ADS
and
thus
do
not
impact
the
question
of
consent, Hallback and Stalley do not adequately account for
the other methods by which consent may have been given.
2.
Ascertaining Recorded Calls
ADS also contends that Stalley and Hallback’s proposed
class definition presents insurmountable technical hurdles:
“Plaintiffs have yet to offer a valid basis by which class
14
members can be identified. In fact, the only evidence on
the issue of ascertaining the identities of potential class
members
comes
from
ADS
and
demonstrates
that
no
manner
exists by which the person who actually answered a call
from ADS can be identified.” (Doc. # 228 at 8).
Central
to
ADS’s
argument
is
the
difficulty
of
determining who actually picked up the phone and answered a
call from ADS. Although Hallback and Stalley state that
“members of the class can be identified and notified based
on ADS’s own records,” (Doc. # 210 at 23), ADS has provided
the
Court
with
collection
notes
generated
from
Mrs.
Robertson’s Dressbarn account – one of the accounts for
which the Robertson household received collection calls –
as
an
example
of
the
scant
information
ADS’s
employees
collect when anyone other than the accountholder answers
one of ADS’s collection calls. (Doc. # 228-1).
“[The collection notes] contain[] nine separate ‘OAHT’
entries . . . . The ‘OAHT’ is an indication that a person
that represented that he/she was not the [accountholder]
answered
the
telephone.
.
.
.
No
other
information
is
contained in the notes regarding the actual identity of
that person.” (Doc. # 228 at 9).
15
ADS
also
maintains
that
“call
recordings
are
not
retained indefinitely by ADS” and that even if recordings
of the calls did exist, “the recording of the OAHT call
itself would likely be of no use, since . . . those calls
often involve nothing more than a request to speak to the
customer,
a
response
indicating
the
customer
is
not
available, and then, termination of the call—without any
indication of who answered the call.” (Id.).
The
declaration
of
Brandlyn
Loibl,
ADS
Compliance
Manager, also supports ADS’s claims:
In the event a call placed by an ADS employee is
answered by a person who does not identify
himself as the accountholder or the spouse of the
accountholder, the ADS employee is trained that
he or she is not permitted to have a substantive
discussion with that person. Instead, the call
could
simply
be
terminated
without
further
conversation or a simpl[e] message left for the
accountholder to call back. Regardless of how
this type of call terminates, ADS’s system would
not
contain
any
information
regarding
the
identity of the person who answered the phone.
(Loibl Decl. Doc. # 230 at ¶ 11).
Stalley
and
Hallback
reference
the
affidavits
and
depositions of Anya Verkhovskaya and Adam Sharp (Doc. ##
192, 193, 210-4, 210-5) to support their contention that
the class can be “identified and notified” by ADS’s own
records (Doc. # 210 at 23). However, Stalley and Hallback
16
have not clarified how the hurdles outlined above might be
overcome.
Furthermore, Stalley and Hallback state that they “do
not offer the testimony of Mr. Sharp or Ms. Verkhovskaya to
show
that
the
members
of
the
proposed
class
can
be
distinguished from the members of the public.” (Doc. # 232
at 12). Instead, they contend that the “proposed class here
is
sufficiently
defined,
and
no
expert
testimony
is
necessary. Therefore, their testimony is not proffered to
support any argument regarding ascertainability.” (Id. at
12). As Stalley and Hallback indicate that they do not wish
the Court to consider the testimony of Ms. Verkhovskaya and
Mr. Sharp as it pertains to ascertainability, the Court has
not considered that testimony in its analysis.1
The Court is not convinced by Stalley and Hallback’s
assertion
that
the
proposed
class
here
is
sufficiently
defined. The Court has not been presented with reasonable
methods for ascertaining the identity of the individuals
1
The Court has not considered the declarations of Ms.
Verkhovskaya and Mr. Sharp (Doc. ## 210-4, 210-5), which
were filed in support of the instant Third Motion for Class
Certification (Doc. # 210). Accordingly, ADS’s Motion to
Strike or Exclude Expert Declarations of Anya Verkhovskaya
and Adam Sharp (Doc. # 226) is denied, without prejudice,
as moot. If ADS wishes to renew the motion regarding the
use of the declarations relative to other pending motions,
it may do so.
17
who answered ADS’s collection calls. Certifying as a class
individuals
were
merely
calls
telephone
who
from
ADS
the
would
intended
recipients
inappropriately
of
include
individuals whose calls were never intercepted and recorded
and who, therefore, have no valid claim under the FSCA. See
Walewski v. Zenimax Media, Inc., 502 F. App’x 857, 861
(11th
Cir.
2012)
(affirming
certification
where
“impermissibly
includes
district
the
court’s
proposed
members
who
class
have
denial
of
definition
no
cause
of
action”).
The Court finds that the proposed class is not clearly
ascertainable
and
thus
class
certification
is
inappropriate. However, in the interest of thoroughness and
to
promote
consider
clarity
the
of
the
requirements
record,
explicitly
the
Court
set
will
forth
in
also
Rule
23(a).
B.
Rule 23(a) Analysis
Even if the Court sets aside the problem of adequately
defining
Little,
establish
and
691
clearly
F.3d
the
at
ascertaining
1304,
propriety
of
Stalley
class
the
and
proposed
Hallback
certification
class,
must
under
Federal Rule of Civil Procedure 23(a). See Amchem Prods.,
521 U.S. at 615–18. As stated above, under Rule 23(a), a
18
class
may
be
certified
only
if
the
requirements
of
numerosity, commonality, typicality, and adequacy are met.
Vega, 564 F.3d at 1265.
1.
Numerosity
To satisfy numerosity, the prospective class must be
“so numerous that joinder of the class is impracticable.”
Fed. R. Civ. P. 23(a)(1). “The Court is given discretion to
make
assumptions
when
determining
the
numerosity
of
a
class.” Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697,
699 (M.D. Fla. 2000) (citing Evans v. U.S. Pipe & Foundry,
696
F.2d
925,
930
(11th
Cir.
1983)).
While
“mere
allegations of numerosity are insufficient,” Fed. R. Civ.
P.
23(a)(1)
imposes
a
“generally
low
hurdle,”
and
“a
plaintiff need not show the precise number of members in
the class.” Manno v. Healthcare Revenue Recovery Grp., LLC,
289
F.R.D.
674,
684
(S.D.
Fla.
2013).
“Nevertheless,
a
plaintiff still bears the burden of making some showing,
affording the district court the means to make a supported
factual finding that the class actually certified meets the
numerosity requirement.” Vega, 564 F.3d at 1267 (emphasis
in original).
Although
mere
numbers
are
not
dispositive,
the
Eleventh Circuit has indicated that less than twenty-one
19
class plaintiffs is inadequate, and more than forty class
plaintiffs is generally enough to satisfy the rule. Cox v.
Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.
1986).
Stalley and Hallback state that “[w]hile the precise
number of class members in this case is not known at this
time, what is known, from ADS’s own declarations, are the
minimum number of calls it made during the relevant time
period
(41,501,098)
and
the
minimum
number
of
calls
actually answered (582,543).” (Doc. # 210 at 9).
In
his
Order
denying
without
prejudice
Stalley
and
Hallback’s Motion to Compel Responses to Fourth Request for
Production
of
Documents,
the
Honorable
Thomas
B.
McCoun
III, United States Magistrate Judge states that the Motion
to
Compel
was
“prompted
by
Defendant’s
argument
in
connection with class certification issues, that is, that
Plaintiffs can offer nothing more than gross numbers of
calls answered by persons as evidence of the number of
class members that exist in this case.” (Doc. # 157 at 5).
Judge McCoun found that “the inability to determine with
precision the actual number of class members is no bar to
certification of a class in circumstances such as these
where applying reason and common sense assumptions to the
20
available gross numbers inevitably leads to the conclusion
that there are thousands of potential class members.” (Id.
at 5-6).
Although
the
ascertaining
Court
specific
has
expressed
class
its
members
concern
will
that
require
individualized factual inquiry, it agrees with Judge McCoun
that “the sheer volume of past due accounts and calls made
and answered reasonably suggest that the class is likely in
the thousands.” (Id. at 6).
Stalley
and
Hallback
have
Thus, the Court finds that
satisfied
the
requirement
of
numerosity.
2.
Commonality
Federal Rule of Civil Procedure 23(a)(2) requires that
there be “questions of law or fact common to the class.”
Fed.
R.
Civ.
P.
23(a)(2).
Commonality
pertains
to
the
characteristics of the group or class as a whole, unlike
typicality which refers to the individual characteristics
of the class representative as compared to those of the
class members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341,
1346 (11th Cir. 2001) (citing Prado-Steiman v. Bush, 221
F.3d 1266, 1279 (11th Cir. 2000)).
Commonality
“does
not
require
complete
identity
of
legal claims.” Johnson v. Am. Credit Co. of Ga., 581 F.2d
21
526,
532
satisfied
(5th Cir.
1978).
even
some
with
In
fact,
factual
commonality
variations
can
among
be
class
members. Armstead v. Pingree, 629 F. Supp. 273, 280 (M.D.
Fla. 1986).
However, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541 (2001), the Supreme Court clarified the commonality
requirement
rejecting
the
commonality.
complaint
for
class
use
Noting
literally
of
certification
generalized
that
“any
raises
by
questions
competently
common
specifically
to
establish
crafted
questions,”
the
class
Court
stated:
What matters to class certification . . . is not
the raising of common questions – even in droves
- but, rather the capacity of a classwide
proceeding to generate common answers apt to
drive
the
resolution
of
the
litigation.
Dissimilarities within the proposed class are
what have the potential to impede the generation
of common answers.
Id. at 2551 (internal citation omitted) (emphasis added).
The
Court
explained
that
the
“common
contention”
underpinning a finding of Rule 23(a)(2) “must be of such a
nature that it is capable of class wide resolution – which
means
that
determination
of
its
truth
or
falsity
will
resolve an issue that is central to the validity of each
one of the claims in one stroke.” Id.
22
Stalley
and
Hallback
argue
that
“the
claims
of
Plaintiffs and the class contemplate common questions of
law
and
practice
fact,
of
Plaintiffs
i.e.,
whether
recording
and
the
its
class
ADS’s
policy
telephone
without
and
regular
conversations
their
prior
with
consent
violates the FSCA.” (Doc. # 210 at 10). “Rule 23 does not
require that all questions of law and fact raised by the
dispute be common . . . The claims actually litigated in
the suit must simply be those fairly represented by the
named plaintiffs.” Cox, 784 F.2d at 1557. Upon review of
the
record,
the
Court
finds
that
the
common
questions
suggested by Stalley and Hallback are sufficient to satisfy
the commonality requirement. “These [common questions] are
not
simply
convenient
or
collateral
common
[questions].
Rather, these questions are central to the case and their
centrality and commonality support the policy objectives
behind class certification.” Buford v. H & R Block, Inc.,
168 F.R.D. 340, 350 (S.D. Ga. 1996) aff’d sub nom. Jones v.
H & R Block Tax Servs., 117 F.3d 1433 (11th Cir. 1997).
Therefore, Stalley and Hallback have met their burden of
demonstrating the commonality requirement.
3.
Typicality
23
Class certification also requires that the claims of
the class representatives be typical of those of the class.
See
Fed.
R.
typicality,
Civ.
P.
“there
23(a)(3).
be
claims
representative’s
must
a
or
In
order
to
nexus
between
defenses
and
establish
the
the
class
common
questions of fact or law which unite the class.” Kornberg
v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th
Cir.
1984).
claims
or
“A
sufficient
defenses
representative
arise
nexus
of
the
from
the
is
established
class
same
and
event
if
the
or
the
class
pattern
or
practice and are based on the same legal theory.” Id.
When the class representative’s injury is different
from
that
of
the
rest
of
the
class,
his
claim
is
not
typical and he cannot serve as the class representative.
Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001).
Moreover, when proof of the class representative’s claim
would
not
necessarily
prove
the
claims
of
the
proposed
class members, the class representative does not satisfy
the typicality requirement. Brooks v. S. Bell Tel. & Tel.
Co.,
133
F.R.D.
54,
58
(S.D.
Fla.
1990).
“Typicality,
however, does not require identical claims or defenses.”
Kornberg, 741 F.2d at 1337.
“A factual variation will not
render a class representative’s claim atypical unless the
24
factual
position
of
the
representative
markedly
differs
from that of other members of the class.” Id.
Stalley and Hallback argue that ADS’s calls to Mr.
Robertson – now represented by Stalley – and to Hallback
were recorded without consent and in violation of the FSCA.
(Doc.
208
at
¶¶
22-25,
52).
They
also
claim
that
each
potential class member suffered the same injury in the same
way. (Id.
at ¶¶ 37-38). Therefore, they state that the
“facts and law concerning the claims of Plaintiffs and the
proposed
class
are
sufficiently
similar
in
nature
to
satisfy Rule 23(a)(3)’s typicality requirement.” (Doc. #
210 at 11). The Court agrees and finds that a “sufficient
nexus”
has
been
established
to
satisfy
the
typicality
requirement.2
4.
Adequacy
The final requirement for class certification under
Rule 23(a) is adequate representation.
23(a)(4).
This
prerequisite
requires
See Fed. R. Civ. P.
that
the
class
2
The Court is well aware of ADS’s arguments regarding the
presence of individual questions in this action and its
assertion that Hallback’s accountholder status raises
questions regarding his consent. (Doc. ## 228 at 12-14, 134
at 17-18). However, many of those concerns have been
addressed in the discussion of ascertainability above, and
others
are
better
addressed
under
the
predominance
requirement of Fed. R. Civ. P. 23(b)(3).
25
representatives
have
representative
class
representatives
prosecute
the
common
interests
members
demonstrate
interests
and
that
of
the
with
the
requires
they
non-
that
the
vigorously
through
class
will
qualified
counsel. Piazza, 273 F.3d at 1346. Thus, the adequacy of
representation
analysis
involves
two
inquiries:
“(1)
whether any substantial conflicts of interest exist between
the
representatives
representatives
Valley
Drug
and
will
Co.,
the
class,
adequately
350
F.3d
and
(2)
prosecute
at
1189
whether
the
the
action.”
(quoting
In
re
HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 460–61 (N.D.
Ala. 2003)). “The existence of minor conflicts alone will
not defeat a party’s claim to class certification.” Id.
Rather, “the conflict must be a fundamental one going to
the specific issues in controversy.” Id.
ADS makes much of the fact that Hallback originally
claimed he was not an accountholder with any of the banks
ADS services, but later filed a Notice to Correct Record
(Doc. # 130) and an Amended Notice to Correct Record (Doc. #
131) stating that he “did have a credit account with the
Home Shopping Network . . ., which is a World Financial
Capital Bank account” and is serviced by ADS. (Id. at ¶ 7).
ADS
claims
that
this
incident
26
bears
on
both
Hallback’s
credibility and on the adequacy of Stalley and Hallback’s
counsel. (Doc. # 134 at 17-19).
While
the
Court
certainly
expects
diligence
from
officers of the court and honesty from all parties, the
Court
has
no
reason
to
believe
that
the
discrepancy
regarding Hallback’s status as an accountholder was anything
other
than
a
mistake.
When
the
mistake
was
discovered,
Stalley and Hallback notified the Court. (Doc. ## 130; 131).
Once Stalley and Hallback notified the Court, the Court took
steps to ensure that ADS was not prejudiced by the incident.
(Doc. # 196). The Court is not persuaded that this event
renders
either
Hallback
or
counsel
inadequate
representatives.
Additionally, although ADS argues that Hallback – an
accountholder subject to a credit card agreement – expressly
consented to allow telephone conversations to be recorded
and is thus subject to “at least one unique defense,” the
Court does not agree that the possibility of such a defense
makes Hallback an inadequate class representative. (Doc. #
134 at 17-18). If the proposed class were certified, the
question
of
consent
via
credit
card
agreement
could
be
connected to the resolution of many class members’ claims.
While the person-by-person nature of the inquiry bears on
the
predominance
of
common
27
questions
over
questions
affecting only individual members, it does not impact the
question of adequacy to the same degree.
ADS also contends that Stalley’s “status as Personal
Representative
of
Mr.
Robertson’s
estate
makes
him
an
inadequate class representative. This is so due to the fact
that his duty to the creditors and beneficiaries of the
estate
conflicts
with
his
duty
to
the
absent
class
members.” (Id. at 14). However, ADS acknowledges that there
is
no
per
se
rule
that
Personal
Representatives
cannot
serve as class representatives. (Id. at 14 n.13). Stalley
and Hallback likewise argue that there is “no prohibition
on the substitution of a personal representative as the
named plaintiff in a class action” and that it is “often
appropriate for the substitution of an estate administrator
for a deceased class representative.” (Doc. # 78 at ¶¶ 1718).
While the Court does not dispute ADS’s claim that
Stalley’s primary fiduciary duty is to the beneficiaries
and creditors of Mr. Robertson’s estate, the Court has no
reason to believe that such a fiduciary duty is necessarily
a “fundamental” conflict “going to the specific issues in
controversy.” Id.; Valley Drug Co., 350 F.3d at 1189. As
such, the Court does not find that Stalley’s position as
28
Personal Representative defeats the adequacy requirement of
Rule 23.
As to the adequacy of counsel, Stalley and Hallback are
represented
by
qualified
attorneys
–
most
of
whom
are
shareholders or partners in their respective law firms –
with many years of experience in class action litigation.
(Doc.
#
210-3).
Counsel
have
submitted
declarations,
resumes, attorney profiles, and other documentation to the
Court as evidence of their credentials. (Id.). The Court
thus
finds
that
they
“will
adequately
prosecute
the
action.” Valley Drug Co., 350 F.3d at 1189. The Court is
not
persuaded
by
ADS’s
repeated
attempts
to
discredit
opposing counsel. (Doc. # 134 at 18-20; 205; 228 at 20; 266
at
10-11).
Furthermore,
the
parties
are
encouraged
to
cooperate whenever possible and to conduct themselves with
civility at all times.
C.
Rule 23(b) Analysis
In order for class certification to be appropriate,
the
action
must
also
fall
within
one
of
the
three
categories of class suits described in Rule 23(b). Fed. R.
Civ. P. 23(b). In this case, Stalley and Hallback argue
that this case is appropriate for certification under Rule
23(b)(2) and 23(b)(3). As such, the Court will also limit
its analysis to Rule 23(b)(2) and Rule 23(b)(3).
29
1.
Rule
Rule 23(b)(2)
23(b)(2)
certification
is
warranted
when
the
defendant “has acted or refused to act on grounds generally
applicable to the class, thereby making final injunctive or
declaratory relief appropriate.” Fed. R. Civ. P. 23(b)(2).
A declaratory or injunctive relief class pursuant to Rule
23(b)(2)
is
appropriate
only
if
“the
predominant
relief
sought is injunctive or declaratory.” Murray v. Auslander,
244
F.3d
807,
812
(11th
Cir.
2001)
(internal
quotation
marks and citation omitted). “Rule 23(b)(2) certification
is
not
warranted
where,
notwithstanding
a
request
for
injunctive or declaratory relief, the predominant relief
requested is monetary.” Hammett v. Am. Bankers Ins. Co.,
203 F.R.D. 690, 696 (S.D. Fla. 2001) (citing Murray, 244
F.3d at 812); see also Holmes v. Continental Can Co., 706
F.2d 1144, 1155 (11th Cir. 1983); Advisory Committee Note
to
1966
Amendment
to
Fed.
R.
Civ.
P.
23(b)(2)
(“[Rule
23(b)(2)] does not extend to cases in which the appropriate
final relief relates exclusively or predominantly to money
damages.”).
“[M]onetary
relief
predominates
in
(b)(2)
class
actions unless it is incidental to requested injunctive or
declaratory relief.” Murray, 244 F.3d at 812. The Eleventh
30
Circuit defines the “specific criteria to determine whether
monetary
damages
Hammett,
203
are
F.R.D.
at
incidental
696,
as
to
when
equitable
the
relief,”
damages
“flow
directly from liability to the class as a whole on the
claim forming the basis of the injunctive or declaratory
relief.” Murray, 244 F.3d at 812 (quoting Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)). The
Eleventh Circuit has further held:
Ideally, incidental damages should be only those
to which class members automatically would be
entitled
once
liability
to
the
class
(or
subclass) as a whole is established. . . .
Liability for incidental damages should not . . .
entail
complex
individualized
determinations.
Thus, incidental damages will, by definition, be
more in the nature of a group remedy, consistent
with the forms of relief intended for (b)(2)
class actions.”
(Id.).
“The injuries remedied through Rule 23(b)(2) actions
are
really
group,
as
opposed
to
individual,
remedies.”
Hammett, 203 F.R.D. at 696 (citing Holmes, 706 F.2d at 1155
n.8); see also DWFII Corp. v. State Farm Mut. Auto. Ins.
Co., 469 F. App’x 762, 765 (11th Cir. 2012). “The members
of
a
(b)(2)
class
are
generally
bound
together
through
‘preexisting or continuing legal relationships’ or by some
31
significant common trait such as race or gender.” Hammett,
203 F.R.D. at 696 (quoting Holmes, 706 F.2d at 1155 n.8).
In Count II of the Third Amended Complaint, Stalley
and
Hallback
seek
injunctive
relief
pursuant
to
Florida
Statute § 934.10(1)(a). (Doc. # 208 at 13). However, Count
I states, “This is an action for statutory damages under
the FSCA.” (Id. at 12). While § 934.10 provides a statutory
scheme for the award of actual damages, it requires that
damages be determined on a claimant-by-claimant basis by
examining
specific
the
dates
claimant
and
in
frequency
violation
of
of
calls
the
made
FSCA:
to
a
“Actual
damages, but not less than liquidated damages computed at
the rate of $100 a day for each day of violation or $1,000,
whichever is higher.” Fla. Stat. § 934.10(1)(b).
After careful consideration of the parties’ arguments,
the Court is not persuaded that the relief Stalley and
Hallback
that
While
request
is
certification
Stalley
and
incidental
is
to
appropriate
Hallback
claim
injunctive
under
that
Rule
relief
and
23(b)(2).
certification
is
appropriate under Rule 23(b)(2) because ADS’s “pattern of
practice
to
record
all
outbound
calls”
is
“generally
applicable to the proposed class as a whole,” the Court
cannot disregard the possibility that consent was given for
32
ADS to record some of those outbound calls. The putative
class is “neither bound together by a legal relationship or
a
significant
cohesiveness
common
that
trait
and
thus
distinguishes
lack
(b)(2)
the
from
class
(b)(3)
actions.” Hammett, 203 F.R.D. at 696 (citing Holmes, 706
F.2d
at
1155–56).
Thus,
the
Court
finds
that
class
certification is not appropriate under Rule 23(b)(2).
2.
Stalley
under
Rule
Rule 23(b)(3)
and
Hallback
23(b)(3).
seek
certify
To
also
a
class
Rule
certification
23(b)(3)
class,
plaintiffs must demonstrate “(1) that questions of law or
fact common to class members predominate over any questions
affecting only individual members (‘predominance’); and (2)
that a class action is superior to other available methods
for
fairly
and
efficiently
(‘superiority’).”
1183,
1190
(11th
Babineau
Cir.
adjudicating
v.
2009)
Fed.
Exp.
(citing
the
controversy
Corp.,
Fed.
R.
576
Civ.
F.3d
P.
23(b)(3); Vega, 564 F.3d at 1265).
a. Predominance
For
common
issues
to
predominate,
plaintiffs
must
demonstrate that “the issues in the class action that are
subject to generalized proof, and thus applicable to the
class as whole, . . . predominate over those issues that
33
are subject to individualized proof.” Kerr v. City of West
Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989) (internal
quotations and citation omitted).
“If
‘after
plaintiffs
adjudication
must
still
of
the
introduce
class-wide
a
great
issues,
deal
of
individualized proof or argue a number of individualized
legal points to establish most or all of the elements of
their individual claims, their claims are not suitable for
class
certification
Health
Sys.,
Inc.
under
v.
Rule
Humana
23(b)(3).’”
Military
Sacred
Healthcare
Heart
Servs.,
Inc., 601 F.3d 1159, 1170 (11th Cir. 2010) (quoting Klay v.
Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004), rev’d
on other grounds; see Perez, 218 F.R.D. at 273 (declining
class
certification
because
“any
efficiency
gained
by
deciding the common elements will be lost when separate
trials
are
determine
required
each
for
each
member’s
class
member
entitlement
to
in
the
order
to
requested
relief”)).
“The predominance inquiry requires an examination of
‘the
claims,
substantive
defenses,
law,’
resolution
of
individual
class
.
the
.
relevant
.
to
assess
class-wide
member’s
the
issues
claim
34
facts,
and
degree
will
against
applicable
to
further
the
which
each
defendant.”
Babineau,
576
F.3d
at
1191
(quoting
Klay,
382
F.3d
at
1254).
The Court finds that common issues of law and fact do
not predominate over questions affecting individual class
members.
Instead,
the
adjudication
of
Stalley
and
Hallback’s claims on a class-wide basis would be consumed
by individual factual inquiries and individual application
of the pertinent substantive law. See Babineau, 576 F.3d at
1191-95
(affirming
district
court’s
denial
of
class
certification after deciding that individualized questions
were not suitable for class-wide adjudication).
ADS argues that “[i]n order to determine each class
member’s respective claim, the court would need to examine
each interaction between ADS and the called party. . . . In
the
instant
case,
it
is
the
Plaintiffs’
burden
to
demonstrate, inter alia, that each call was recorded and
that the class member did not consent to the recording.”
(Doc. # 228 at 19).
In
class,
its
the
discussion
Court
of
discussed
consent
might
require
factual
circumstances
a
of
the
at
ascertainability
length
case-by-case
each
how
the
inquiry
potential
class
of
issue
into
the
of
the
member’s
relationship with ADS. In addition to calling into question
35
how
the
class
might
be
ascertained,
that
kind
of
individualized inquiry also suggests that common questions
do
not
predominate
over
individual
ones.
Even
without
accepting ADS’s argument that accountholders consented to
ADS’s
policy
of
recording
calls
via
the
credit
card
agreement, there are still many ways that recipients of
ADS’s collection calls may have consented to recording. As
the Eleventh Circuit stated in a case brought under the
Federal Wiretap Act, 18 U.S.C. § 2510 et seq., it is “the
task of the trier of fact to determine the scope of the
consent
and
to
decide
whether
and
to
what
extent
the
interception exceeded that consent.” Watkins v. L.M. Berry
& Co., 704 F.2d 577, 582 (11th Cir. 1983).3
Furthermore, ADS claims that “while it is ADS’s policy
to attempt to record all calls,” all of the calls placed
during the proposed class period were not recorded. (Doc. #
228
at
14;
Prince
Decl.
Doc.
#
229
at
¶
7-9).
From
3
“The Court notes that the FSCA was modeled after the
Federal Wiretap Act, 18 U.S.C. § 2510 et seq., as amended
by the Electronic Communications Privacy Act of 1986.”
Brevard Extraditions, Inc. v. Fleetmatics, USA, LLC, No.
8:12-cv-2079-T-17MAP, 2013 WL 5437117, at *3 (M.D. Fla.
Sept. 27, 2013). Florida courts “follow federal courts as
to the meaning of provisions after which Chapter 934 was
modeled.” Id. (citing O’Brien v. O’Brien, 899 So. 2d 1133,
1135–36 (Fla. 5th DCA 2005); Minotty v. Baudo, 42 So. 3d
824, 832 (Fla. 4th DCA 2010)).
36
“unforeseen
scheduled
and
unknown
maintenance,”
technical
ADS
issues”
contends
to
for
that
“routine
various
reasons, some of the calls made by ADS were not actually
intercepted. (Prince Decl. Doc. # 229 at ¶ 8).
In his declaration in support of ADS’s opposition to
the
Third
Motion
for
Class
Certification,
Todd
Prince,
ADS’s Senior Director, Systems, states that ADS experiences
“a
major
interruption
thousand
calls
months.
During
are
in
not
these
call
recording
recorded)
about
interruptions,
(i.e.
once
none
several
every
four
the
calls
of
impacted by the interruption are recorded.” (Id. at ¶ 13).
Further, according to Mr. Prince, ADS undertook a “major
conversion
project
with
respect
to
one
of
its
call
recording systems” in 2012, and that project “resulted in
more
than
conversion
1,000,000
project
calls
not
impacted
being
calls
recorded.
made
by
ADS
This
to
accountholders in Florida, and resulted in such calls not
being recorded.” (Id. at ¶ 14).
Pursuant to the FSCA, no civil cause of action exists
for attempted interception of communications. See Minotty
v. Baudo, 42 So. 3d 824, 830 (Fla. 4th DCA 2010) (“By its
choice
of
statutory
language,
the
Legislature
did
not
create a civil cause of action for attempts to intercept .
37
. . communications. It provided for civil damages only for
the
actual
interception,
communications.”).
determine
whether
dissemination,
Accordingly,
ADS’s
it
or
use
is
collection
of
those
necessary
calls
were
to
actually
intercepted and recorded in order to state a claim under
the FSCA. However, the question of whether a specific call
was recorded is also a question that must be answered on an
individual basis.
Elements
that
are
necessary
to
state
a
successful
claim under the FSCA require that extensive individualized
inquiries be made. As such, the Court finds that questions
of law or fact common to class members do not predominate
over the questions affecting only individual members.
b. Superiority
The
“superior
Court
to
also
other
finds
that
available
a
class
methods
action
for
is
not
fairly
and
efficiently adjudicating this action.” See Fed. R. Civ. P.
23(b)(3). The focus of a superiority analysis “is on the
relative advantages of a class action suit over whatever
other forms of litigation might be realistically available
to the plaintiffs.” Sacred Heart, 601 F.3d at 1183-84.
“[T]he predominance analysis has a tremendous impact
on
the
superiority
analysis.
38
.
.
.”
Id.
(internal
quotations
omitted);
see
also
Jackson
v.
Motel
6
Multipurpose, Inc., 130 F.3d 999, 1006 (11th Cir. 1997)
(“The predominance and [superiority] criteria are of course
intertwined.”). “The more common issues [that] predominate
over individual issues, the more desirable a class action
lawsuit
will
plaintiffs’
litigation
be
as
claims,
such
as
a
vehicle
both
for
relative
joinder
or
to
adjudicating
other
the
forms
consolidation,
of
and
in
absolute terms of manageability.” Sacred Heart, 601 F.3d at
1184.
However,
the
converse
is
also
true.
Id.
When
questions affecting individual members predominate, “class
treatment would be either singularly inefficient, as one
court attempts to resolve diverse claims . . . or unjust,
as
the
various
factual
and
legal
nuances
of
particular
claims are lost in the press to clear the lone court’s
docket.” Jackson, 130 F.3d at 1006.
The Court has found that questions of law or fact
common
to
class
members
do
not
predominate
over
the
questions affecting only individual members in this action,
thus
the
Court
finds
that
a
class
action
would
be
inefficient and difficult to manage. A class action is not
superior
to
other
available
methods
efficiently adjudicating this controversy.
39
for
fairly
and
IV.
Conclusion
Stalley and Hallback have failed to demonstrate that
this action falls within one of the three categories of
class suits described in Rule 23(b), and they have failed
to show that the proposed class is clearly ascertainable.
Thus, the Court denies Stalley and Hallback’s Third Motion
for Class Certification. For the reasons stated above, the
Court also denies, without prejudice, as moot ADS’s Motion
to
Strike
or
Exclude
Expert
Declarations
of
Anya
Verkhovskaya and Adam Sharp.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiffs
Personal
Douglas
B.
Stalley,
Representative
of
in
the
his
capacity
Estate
of
as
Gary
Robertson, and Jeremiah Hallback’s Third Motion for
Class Certification (Doc. # 210) is DENIED.
(2)
Defendant ADS Alliance Data Systems, Inc.’s Motion to
Strike
or
Exclude
Expert
Declarations
of
Anya
Verkhovskaya and Adam Sharp (Doc. # 226) is DENIED,
without prejudice, as moot.
DONE and ORDERED in Chambers in Tampa, Florida, this
25th day of November, 2013.
40
Copies: All Counsel of Record
41
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