LANTERI v. CREDIT PROTECTION ASSOCIATION, L.P. et al

Filing 137

ENTRY ON MOTION FOR CLASS CERTIFICATIONAND VARIOUS RELATED MOTIONS: In conclusion, the Plaintiff's Amended Motion for Class Certification (Dkt. No. 102) is DENIED WITHOUT PREJUDICE; the Defendants' Motion to Stay Ruling on Motion for Class Certification until Plaintiff's Experts Can Be Deposed (Dkt. No. 120) is DENIED AS MOOT; and the Defendants' Motion to Compel (Dkt. No. 125) is DENIED, but the denial is without prejudice with regard to discovery related to Biggerstaff. The Plaintiff's new motion for class certification shall be filed within 21 days of the date of this Entry ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 8/17/2016. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KATHERINE LANTERI, individual and on
behalf of all others similarly situated,
Plaintiff,
vs.
CREDIT PROTECTION ASSOCIATION,
L.P., et al.,
Defendants.

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ENTRY ON MOTION FOR CLASS CERTIFICATION
AND VARIOUS RELATED MOTIONS
This cause is before the Court on the following motions: the Plaintiff’s Amended Motion
for Class Certification (Dkt. No. 102); the Defendants’ Motion to Stay Ruling on Motion for
Class Certification until Plaintiff’s Experts Can Be Deposed (Dkt. No. 120); and the Defendants’
Motion to Compel (Dkt. No. 125). All of the motions are fully briefed1 and the Court, being
duly advised, resolves them as follows.
As relevant to the instant motion, the Plaintiff alleges in her Complaint that the
Defendants2 violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
227(b)(1)(A),3 by (1) continuing to contact her on her cellular phone via a Short Messaging

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The Court notes that the Defendants have repeatedly violated Local Rule 5-6(a)(2) by
failing to give the exhibits they submit descriptive titles. The Defendants shall comply with this
rule in the future.
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The Court is aware that Defendant ETAN General, Inc., disputes whether it has any
liability for the messages sent by its co-defendant; however, the two Defendants have briefed the
instant motions jointly, so the Court will refer to them collectively in this Entry.
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In addition to the allegations regarding text messages, the Complaint alleges that certain
telephone calls were made by the Defendants in violation of the TCPA and also asserts a claim
for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Those claims
are not the subject of the instant motion.

Service (“SMS”) regarding a debt after she replied to a text message from them with the message
“STOP” per the opt-out instructions in the text message, and (2) contacting her while the debt
was subject to an automatic stay order of a bankruptcy court. The Plaintiff brings her claims on
behalf of herself and all others similarly situated, and now asks the Court to certify the following
class:
(1) All persons within the United States (2) to whose cellular telephone number
(3) [Defendant Credit Protection Association, L.P. (“CPA”)] sent a nonemergency telephone call (4) using an automatic telephone dialing system or an
artificial or prerecorded voice (5) within four years of the complaint (6) where
CPA did not have express consent to call said cellular telephone number or where
consent had been revoked for any such calls.
The Defendants argue, correctly, that this is an impermissible fail-safe class. A fail-safe
class is “one that is defined so that whether a person qualifies as a member depends on whether
the person has a valid claim. Such a class definition is improper because a class member either
wins or, by virtue of losing, is defined out of the class and is therefore not bound by the
judgment.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012).
Here, the Plaintiff alleges that the Defendants violated 47 U.S.C. § 227(b)(1)(A), which
provides, in relevant part, that it is “unlawful for any person within the United States . . . to make
any call (other than a call made for emergency purposes or made with the prior express consent
of the called party) using any automatic telephone dialing system or an artificial or prerecorded
voice . . . to any telephone number assigned to a . . . cellular telephone service.” Because the
class definition proposed by the Plaintiff in essence tracks the language of the statute that she
alleges the Defendants violated—therefore defining a class member as someone as to which the
Defendants violated the statute—it is a failsafe class and, as such, cannot be certified.
That is not fatal to the Plaintiff’s quest for class certification, however.
Defining a class so as to avoid, on one hand, being over-inclusive and, on the
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other hand, the fail-safe problem is more of an art than a science. Either problem
can and often should be solved by refining the class definition rather than by flatly
denying class certification on that basis.
Messner, 669 F.3d at 825. The Plaintiff states in her reply brief that she “has no objection to
limiting the Class to the two Sub-Classes by just treating them as separate classes.” Dkt. No. 119
at 6-7. The proposed sub-classes are:
Subclass A: TCPA Stop Texting Sub-Class
(1) All persons within the United States (2) to whose cellular telephone number
(3) CPA sent a non-emergency telephone call via text message (4) using an
automatic telephone dialing system (5) within four years of the complaint (6)
where the cellular phone owner previously replied to the text message with the
message to stop.
Subclass B: TCPA Bankruptcy Stay Sub-Class
(1) All persons within the United States (2) to whose cellular telephone number
(3) CPA sent a non-emergency telephone call via text message (4) using an
automatic telephone dialing system or an artificial prerecorded voice (5) within
four years of the complaint (6) during a period of an automatic stay as ordered
from a Bankruptcy Court.
Because the Defendants have not had the opportunity to address the propriety of these two
definitions as independent class definitions, the Court declines to consider them as such. Rather,
the Plaintiff’s Amended Motion for Class Certification is denied without prejudice. The Plaintiff
may file a new motion for class certification that proposes amended class definitions, to which
the Defendants will then have the opportunity to respond. As to each proposed class, the
Plaintiff should clearly identify “the capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011) (emphasis in original) (citation omitted).
In arriving at her new proposed amended class definitions, the Plaintiff should consider
the following. First, the Plaintiff states in her reply brief that “the Court can amend or allow

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Plaintiff to amend the class definitions to replace ‘using an automated telephone dialing system’
with ‘the telephony systems used to call or text Plaintiff.’” Dkt. No. 119 at 6. The Court notes
that unless the Defendants used more than one method to send text messages to any proposed
class member, it is unnecessary to include this language in the class definition. Even if more
than one method was used, this language is unnecessary unless the Defendants dispute that the
method they used is not an “automated telephone dialing system” as that term is used in the
TCPA; it is not clear to the Court whether that is, in fact, disputed in this case. If it is, and if
more than one method was used by the Defendants, then the class definitions should specify the
methods of calling that were used to send text messages to the proposed class members.
In addition, the Court notes that TCPA Subclass A refers to replying to a text message
“with the message to stop.” This is ambiguous. The class definition should specify the language
of the messages sent by the proposed class; i.e., does the class include only those who texted just
the word “stop,” or does it include other variations as well and, if so, which ones?
That leads the Court to the Defendants’ motion to compel and motion to stay. The
motion to stay is moot in light of this ruling. With regard to the Defendants’ request to depose
Kevin McGoff, the motion to compel is denied. The Court will not consider expert opinions
regarding the legal issue of whether Plaintiff’s counsel have violated the applicable ethical rules.
With regard to the Defendants’ request to depose Robert Biggerstaff and obtain additional data
from him, the motion to compel is denied without prejudice to refile if, after reviewing the
Plaintiff’s new motion for class certification and any expert report by Biggerstaff that is
submitted in support of it, the Defendants in good faith believe that the discovery is necessary to
address an issue relevant to the resolution of the class certification motion. Any such motion to
compel shall be filed by the deadline for the Defendants’ response to the new motion for class

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certification and shall be filed only after conferring with the Plaintiff. It shall clearly explain
why the requested discovery is relevant to the Defendants’ response to the motion for class
certification. If the parties reach agreement regarding the discovery, the Defendants shall, by the
applicable deadline, file a motion for extension of time to file their response rather than a motion
to compel.
In conclusion, the Plaintiff’s Amended Motion for Class Certification (Dkt. No. 102) is
DENIED WITHOUT PREJUDICE; the Defendants’ Motion to Stay Ruling on Motion for
Class Certification until Plaintiff’s Experts Can Be Deposed (Dkt. No. 120) is DENIED AS
MOOT; and the Defendants’ Motion to Compel (Dkt. No. 125) is DENIED, but the denial is
without prejudice with regard to discovery related to Biggerstaff. The Plaintiff’s new motion for
class certification shall be filed within 21 days of the date of this Entry.
SO ORDERED: 8/17/16
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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