Ginwright v. Exeter Finance Corp.
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 11/28/2017. (bas, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Civil Action No. TDC-16-0565
EXETER FINANCE CORP.,
Plaintiff Billy Ginwright has brought suit against Defendant Exeter Finance Corporation
(“Exeter”) alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
227 (2012), and the Maryland Telephone Consumer Protection Act (“MTCPA”), Md. Code
Ann., Com. Law §§ 14-3201 to 3202 (2013). Ginwright alleges that Exeter violated these laws
by calling his cellular telephone repeatedly without his consent between June 2013 and July
2015. Pending before the Court are Exeter’s Motion for Summary Judgment and Ginwright’s
Motion for Class Certification. For the reasons set forth below, both Motions are denied.
Exeter is an automobile finance company that purchases consumer contracts known as
“consumer automobile retail installment contracts” from car dealerships. These contracts are
typically purchased shortly after a purchaser agrees to buy a vehicle on credit. Once Exeter
acquires a contract, it provides financing to the purchaser and becomes responsible for servicing
the loan through activities such as processing payments, notifying borrowers of delinquency, and
repossessing the vehicle in the event of non-payment.
Since Exeter acquires contracts from multiple dealerships, it does not maintain a standard
form document for each customer. Once Exeter decides to purchase a contract, it stores an
electronic copy of whatever credit application and retail installment contract forms were signed
by the customer at the dealership.
The particular terms of Exeter’s agreements with its
customers, such as enforceable arbitration agreements, class action waivers, and consent to
telephone contact, therefore vary from customer to customer depending on the dealership at
which the loan originated.
Before providing financing, Exeter conducts a “confirmation call” with a prospective
customer using the telephone number the customer provided on the credit application completed
at the dealership. During the confirmation call, Exeter verifies the information in the credit
application, including the phone number provided, and asks for consent to call that number. If
Exeter decides to purchase the customer’s contract, the next contact with the customer occurs
during a “welcome call” placed by Exeter. During this call, an Exeter representative confirms
the customer’s account and contact information. Subsequent calls from Exeter to a customer
occur on an as-needed basis. For example, an Exeter representative may call customers with
delinquent accounts to ask them to make payments on their loans.
Exeter conducts and manages telephone calls to its customers through a system known as
Aspect that automatically dials calls. Aspect replaced an earlier system, Five9, in September
2012. Aspect maintains a record of when a particular customer was called, at what number, and
a brief description of the disposition of that call. For example, Aspect records whether Exeter
left a message on a customer’s answering machine or if a customer promised to make a payment
on the loan. Exeter maintains audio recordings of many, but not all, of its calls with customers.
Certain customer calls may have been made through other call management systems, the records
of which are not necessarily maintained by Exeter.
Exeter’s overall loan servicing records are maintained in a system known as Shaw. The
Shaw System includes contemporaneous notes of phone conversations made by Exeter
representatives during phone calls with customers, including notations on whether a customer
has consented to telephone contact from Exeter.
Calls to Ginwright
On May 23, 2013, Ginwright purchased a vehicle from Baltimore Washington Auto
Outlet (“BW Auto Outlet”) of Hanover, Maryland and sought a loan to pay for it. Ginwright
signed two documents relating to financing. On the first document, a credit application (“the
Credit Application”) issued by a company called DealerTrack, Ginwright listed his cell phone
number in the box for his home phone number and agreed to the following statement:
You expressly consent to us using prerecorded/artificial voice messages, text
messages, and/or automatic dialing equipment while servicing or collecting your
account, as the law allows . . . you agree that we may take these actions using the
telephone number(s) that you provide us in this credit application, you provide to
us in the future, or we get from another source, even if the number is for a mobile
or cellular telephone and/or our using the number results in charges to you.
Joint Record for Motion for Summary Judgment Briefing (“MSJ JR”) 364.
Application authorized the dealership to solicit financial institutions to extend credit to
Ginwright for the purchase of the vehicle. Exeter was not specifically referenced anywhere on
the Credit Application.
The same day, Ginwright also signed a Retail Installment Sale Contract (“RISC”) with
BW Auto Outlet, which established the conditions for purchasing the vehicle on credit and the
terms for repayment of the loan. The RISC included an integration clause that stated:
This contract, along with all other documents signed by you in connection with
the purchase of this vehicle, comprise the entire agreement between you and us
affecting this purchase. No oral agreements or understandings are binding. Upon
assignment of this contract: (i) only this contract and the addenda to this contract
comprise the entire agreement between you and the assignee relating to the
contract; (ii) any change to this contract must be in writing and the assignee must
sign it; and (iii) no oral changes are binding.
MSJ JR 371. The RISC was assigned to Exeter, which issued a loan to Ginwright.
Exeter began making calls to Ginwright’s cell phone. Having some familiarity with the
process of purchasing a car on credit, Ginwright expected to receive calls from a third-party
financing company such as Exeter after he purchased the vehicle. These calls began as messages
designed to introduce Ginwright to his account with Exeter but eventually transitioned into calls
regarding overdue payments on his loan. Exeter made over 1,800 calls to Ginwright between
June 11, 2013 and July 30, 2015, up to as many as 12 times per day. All of these calls were
placed through Aspect.
Ginwright also made an unspecified number of calls to Exeter
throughout this period.
During at least some of these calls, Ginwright confirmed his cell phone number with
Exeter and stated that it was the primary way to contact him. For example, on June 17, 2015, an
Exeter representative asked Ginwright to “confirm that [by] providing Exeter Finance with your
cell phone number you are giving consent to use this number as a way of contacting you,” to
which Ginwright responded “yes.” MSJ JR 426. Ginwright confirmed his cell phone number
with Exeter during calls on February 12, 2014, March 1, 2014, July 10, 2014, and April 29,
2015, describing it as his primary or only contact number.
Ginwright also expressed frustration with Exeter’s calls. During a conversation with an
Exeter representative on December 5, 2013, Ginwright asked why he was still receiving multiple
calls a day despite scheduling an online payment for his debt. The representative told Ginwright
that the calls could not be stopped until the end of a 14-day cycle during which the calls would
be automatically made. Exeter called Ginwright again the next day, at which point Ginwright
stated “I don’t know why y’all keep calling me.” MSJ JR 441. According to Ginwright, in
various calls, he explicitly asked Exeter to “stop calling my phone” up to five different times.
MSJ JR 67. Exeter’s internal Shaw System records reflect that Ginwright’s consent to receive
calls was not granted on at least five separate occasions. Exeter periodically called Ginwright at
his work phone number as well. However, Exeter stopped making those phone calls after
Ginwright requested that they not call him at work.
When a Motion for Summary Judgment and a Motion for Class Certification are both
pending in a case, the Court has discretion to decide the question of summary judgment before
reaching the issue of class certification. See Toben v. Bridgestone Retail Operations, LLC, 751
F.3d 888, 896 (8th Cir. 2014); Curtin v. United Airlines, Inc., 275 F.3d 88, 92 (D.C. Cir. 2001);
see also Fed. R. Civ. P. 23(c)(1) advisory committee’s note to 2003 amendment. In this case,
the Court finds that a consideration of Exeter’s Motion for Summary Judgment sheds light on
issues relevant to the disposition of the Motion for Class Certification. Therefore, the Court will
first consider Exeter’s Motion for Summary Judgment.
Motion for Summary Judgment
Exeter seeks summary judgment in its favor based on its assertion that the evidence
conclusively establishes that Ginwright provided “prior express consent” to receive autodialed
calls, within the meaning of the TCPA and the MTCPA. According to Exeter, Ginwright
provided this consent by signing the Credit Application and through oral conversations with
Exeter representatives over the course of his loan. Exeter further contends that Ginwright never
validly revoked his consent to receive calls from Exeter.
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the
light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts
supported in the record, not simply assertions in the pleadings. Bouchat v. Balt. Ravens Football
Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). The nonmoving party has the burden to show a
genuine dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. A dispute of material fact is only “genuine” if
sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for
that party. Id. at 248-49.
TCPA and MTCPA
The TCPA was enacted in 1991 to address widespread consumer complaints over
practices such as telemarketing. Mims v. Arrow Fin. Serv., LLC, 565 U.S. 368, 370-71 (2012).
As relevant here, the statute bans the use of an automated telephone dialing system (“ATDS”) to
call a cellular telephone unless the caller has the “prior express consent” of the called party. 47
U.S.C. § 227(b)(1)(A). The TCPA provides a private right of action that allows aggrieved
victims of such calls to bring suit in federal court against a caller who violates the statute. §
227(b)(3); Mims, 565 U.S. at 386-87. A plaintiff may recover statutory damages of $500 per
call, or treble damages ($1,500 per call) if the defendant “knowingly and willfully violated” the
law. 47 U.S.C. § 227(b)(3).
In order to succeed on his TCPA claim, Ginwright must show that Exeter (1) called his
cellular telephone number; (2) using an ATDS; (3) without his “prior express consent.” 47
U.S.C. § 227(b)(1)(A); Los Angeles Lakers, Inc. v. FDIC, 869 F3d 795, 804 (9th Cir. 2017).
Since the MTCPA was merely enacted to enable a private right of action to enforce the TCPA in
state court, these elements also apply to Ginwright’s MTCPA claim. Md. Code Ann., Com. Law
§ 14-3201(2); Worsham v. Ehrlich, 957 A.2d 161, 171-72 (Md. Ct. Spec. App. 2008). This
Court has jurisdiction over Ginwright’s state law claim because the TCPA and MTCPA claims
are part of the same case or controversy and arise from a common nucleus of operative fact,
indeed, the exact same facts, such that supplemental jurisdiction is appropriate. See 28 U.S.C.
1367(a); United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966); see also Sprye v.
Ace Motor Acceptance Corp., No. PX-16-3064, 2017 WL 1684619 at *4 (D. Md. May 3, 2017)
(finding supplemental jurisdiction over an MTCPA claim).
There is no significant dispute that Exeter called Ginwright’s cell phone.
records show hundreds of calls to a phone number ending in 7835, the number that Ginwright
identified as his cell phone. Since Exeter has over 300,000 customers, and virtually all of its
calls to its customers are routed through the Aspect system, there is no significant dispute that
Ginwright was called using an ATDS.
Therefore, the key question is whether Ginwright
consented to Exeter’s ATDS phone calls.
Although the term “prior express consent” suggests an explicit statement that an
individual agrees to receive autodialed calls, the Federal Communications Commission (“FCC”)
has developed a specific interpretation of this language in the debtor-creditor context. To
implement the TCPA, the FCC is empowered to promulgate regulations, the validity of which
may not be challenged in federal district courts. See 47 U.S.C. § 227(b)(2); 28 U.S.C. § 2342(1)
(2012) (vesting exclusive jurisdiction for review of FCC final orders in the courts of appeals);
Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119-21 (11th Cir. 2014) (holding
that a district court lacked jurisdiction to review an FCC order defining prior express consent
under the TCPA); see also Blow v. Bijora, Inc., 855 F.3d 793, 802-03 (7th Cir. 2017) (noting that
“absent a direct appeal” of an FCC Order, the court was “bound to follow it”).
Under such an FCC ruling interpreting the TCPA, a debtor consents to receive autodialed
calls from a creditor simply by providing a phone number at which to be contacted during the
transaction that results in the debt. In re Rules and Regulations Implementing the Tel. Consumer
Prot. Act of 1991 (“2008 FCC Ruling”), 23 FCC Rcd. 559, 564 (2008) (concluding that
“autodialed calls” to “wireless numbers provided by the called party in connection with an
existing debt are made with the ‘prior express consent’ of the called party”). This consent
extends only to calls made regarding the debt. Id. It is not necessary for debtors to have
disclosed their cell phone numbers directly to their creditors. Rather, debtors who provide their
cell phone numbers to an intermediary are deemed to have provided them to creditors who
received them from the intermediary. In re GroupMe, Inc./Skype Communications S.A.R.L.
Expedited Declaratory Ruling Rules and Regulations Implementing the Tel. Consumer Prot. Act
of 1991 (“2014 FCC Ruling”), 29 FCC Rcd. 3442, 3444-47 (2014) (referencing a prior ruling
that a consumer who provides a wireless phone number on a credit application has given prior
express consent to autodialed calls to that number regarding the debt, including from debt
collectors acting on behalf of the creditor). For example, in Mais, the debtor’s wife included the
debtor’s cell phone number on a hospital admission form and signed a statement authorizing the
hospital to disclose the debtor’s information to third parties for billing and collection purposes.
Mais, 768 F.3d at 1124. The United States Court of Appeals for the Eleventh Circuit concluded
that Mais had provided his phone number to his creditor in a way that satisfied the TCPA’s prior
express consent exception. Id. at 1125; accord Baisden v. Credit Adjustments, Inc., 813 F.3d
338, 346 (6th Cir. 2016); Daubert v. NRA Group, LLC, 861 F.3d 382, 389-91 (3d Cir. 2017).
Under this standard, Exeter clearly received Ginwright’s prior express consent to call his
cell phone about his debt. Ginwright listed his phone number on the Credit Application and
authorized the dealership to provide his application to financial institutions, including Exeter.
The phone number was provided on the same day that Ginwright purchased the vehicle and
applied for a loan for the purchase of the vehicle. Under the FCC 2008 Order, this submission is
sufficient to provide prior express consent to receive phone calls from a creditor about the debt
This determination is consistent with other FCC rulings and the purpose of the TCPA. A
debtor need only provide a cell phone number to the creditor, not provide it for any particular
purpose. 2008 FCC Ruling at 564; Hill v. Homeward Residential, Inc., 799 F.3d 544, 552 (6th
Cir. 2015); see also Selby v. LVNV Funding, LLC, No. 13-cv-01383, 2016 WL 6677928 at *8
(S.D. Cal. June 22, 2016). A debtor also does not need specifically to consent to autodialed
calls; consent to be called about the debt is sufficient to allow calls from an ATDS. 2008 FCC
Ruling at 564; Hill, 799 F.3d at 552. Moreover, the FCC has concluded that finding consent
under these facts facilitates “normal, expected, and desired business communications.” 2014
FCC Ruling at 3445. Indeed, Ginwright stated in his deposition that he expected to receive
phone calls from Exeter after he purchased the vehicle.
Ginwright cites several cases in support of his position that a debtor providing a cell
phone number on a credit application is not sufficient to establish “express consent,” and that
such consent must be “clearly and unmistakably stated” and explicitly authorize autodialed calls.
Opp’n Mot. Summ. J. at 5, ECF No. 91. However, none of the cited cases involved the scenario
addressed in the FCC ruling, calls made by a creditor to a debtor where the cell phone number
had been provided to the creditor upon incurring the debt that was the subject of the calls. In
Nigro v. Mercantile Adjustment Bureau, LLC, 769 F.3d 804 (2d Cir. 2014), for example, the
court found no express consent when the plaintiff had given his phone number to the electric
company to arrange for the termination of electrical service to the home of his deceased motherin-law, because the number was not provided during the transaction leading to the preexisting
debt owed by his mother-in-law. Id. at 806-07; see also Thrasher-Lyon v. CCS Commercial,
LLC, No. 11 C 04472, 2012 WL 3835089 at *4 (N.D. Ill. Sept. 4, 2012) (finding no express
consent when the plaintiff provided her cell phone number to the other driver and the police at
the scene of an accident, then received calls from a debt collector for the other driver’s insurance
company). The other case did not even relate to calls made from a creditor to a debtor about an
underlying debt. See Satterfield v. Simon & Shuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009)
(finding no express consent to receive promotional messages from a publisher based on signing
up as a user of a website).
Ginwright also argues that Exeter’s internal Shaw System loan servicing notes state that
consent was not granted at various times over the life of the loan. Whether or not Ginwright
orally consented to autodialed calls during loan servicing discussions does not alter the analysis.
Although such statements could have provided an additional basis to find express consent, the
lack of such statements does not undo the Court’s finding of express consent based on the
undisputed fact that Ginwright provided his cell phone number on the Credit Application, which
constitutes consent as a matter of law under the binding FCC ruling. Having found express
consent based on the Credit Application, it is not necessary to reach Exeter’s other theories for
establishing that Ginwright provided express consent.
Revocation of Consent
Even though Ginwright initially consented to autodialed calls to his cell phone about his
car loan, Ginwright asserts that he later revoked that consent. The FCC has ruled that under the
TCPA, “a called party may revoke consent” to autodialed phone calls “at any time and through
any reasonable means.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act
of 1991 (“2015 FCC Ruling”), 30 FCC Rcd. 7961, 7993 (2015). This right to revoke is premised
on the common law understanding of the meaning of “consent,” which is voluntarily given and
can be voluntarily taken away. See Osorio v. State Farm Bank, FSB, 746 F.3d 1242, 1255-56
(11th Cir. 2014) (finding that express consent may be revoked and that there was a genuine issue
of material fact on whether the plaintiff revoked consent); Gager v. Dell Fin. Serv., 727 F.3d
265, 270-71 (3d Cir. 2013) (holding that the TCPA allows consumers to revoke prior express
consent); 2015 FCC Ruling at 7994. Moreover, as a remedial statute, the TCPA should be
construed to benefit consumers. Gager, 727 F.3d at 271. A consumer may revoke consent by
“any reasonable method including orally or in writing.” 2015 FCC Ruling at 7996. Courts have
applied this right in the context of consent given through a credit application, Gager, 727 F.3d at
267, and through an application for insurance, Osorio, 746 F.3d at 1247.
Ginwright was therefore permitted to revoke his consent to Exeter’s phone calls even
though he had earlier granted it by providing his cell phone number in the Credit Application.
Exeter, however, argues that Ginwright had also consented to autodialed calls through a consent
clause in the Credit Application, and that such consent was bargained-for consideration as part of
a contract between Ginwright and Exeter and thus cannot be revoked. As support, Exeter cites
Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), in which the United
States Court of Appeals for the Second Circuit held that the TCPA did not allow for revocation
of consent when that consent “was included as an express provision of a contract.” Id. at 57.
Such a prohibition on later revocation of consent arising from a boilerplate consent provision,
however, would be inconsistent with the FCC’s ruling that a consumer has “a right to revoke
consent,” 2015 FCC Ruling at 7996, including when originally provided in a credit application,
id. at 7993 n.216, and with the remedial purposes of the TCPA, see Gager, 727 F.3d at 271. The
Court therefore declines to adopt the prohibition on revocation in Reyes, which would result in
the effective circumvention of the TCPA in the debtor-creditor context. Indeed, Exeter itself has
acknowledged that “[c]onsent under the TCPA is not a matter of contract, nor subject to contract
principles.” Opp’n Mot. Class Certification at 15, ECF No. 65.
In any event, it is not clear that the consent clause in the Credit Application could be
construed as a bargained-for contract term. Even if it were deemed to be such a term, Ginwright
was not contractually bound to it because a close reading of the relevant agreements reveals that
the Credit Application was not part of Ginwright’s contractual agreement with Exeter. The
Credit Application, on its face, was not a contract between Ginwright and Exeter.
integration clause of the RISC provides that “[t]his contract, along with all other documents
signed by you in connection with the purchase of this vehicle, comprise the entire agreement
between you and us affecting this purchase.” MSJ JR 371. Under this provision, the Credit
Application, as a “document signed by you in connection with the purchase” arguably was part
of the agreement between Ginwright and the dealership. Id. The contractual agreement between
Ginwright and Exeter, however, arose when the RISC was assigned to Exeter. The same
integration clause further states that “[u]pon assignment of this contract: (i) only this contract
and the addenda to the contract comprise the entire agreement between you and the assignee
relating to this contract.” Id. Because the Credit Application was not an addendum to the RISC,
the plain language of the RISC does not include it in the agreement going forward between
Ginwright and the assignee, Exeter. This plain language agreed to by the parties supersedes any
general principles relating to assignments, and subsequent language in the assignment document
does not amend this provision because Ginwright was not a party to the assignment. As a credit
application signed by only one party, it cannot fairly be construed as a second contract with the
same party akin to the Buyer’s Order and RISC construed together in McLarty v. Santander
Consumer USA, Inc., 700 F.3d 690, 700 (4th Cir. 2012). Where Ginwright was not contractually
bound by the consent clause in the Credit Application, the Court concludes that there was no bar
to revocation of consent.
Although Ginwright was permitted to revoke his consent to Exeter’s calls, the record
does not establish definitively whether or when such revocation took place. Ginwright has
testified that he told Exeter to “stop calling my phone” as many as five different times, but did
not recall precisely when he gave that instruction. MSJ JR 66-67. Exeter has countered by
asserting that it reviewed recordings of 89 calls with Ginwright and has not identified any
instance in which Ginwright explicitly revoked consent to receive calls on his cell phone.
Rather, it has offered one recorded call, on June 17, 2015, during which Ginwright specifically
granted Exeter consent to contact him on his cell phone, without stating whether he consented to
autodialed calls. Exeter acknowledges, however, that the 89 recorded calls are not the entire
universe of Ginwright’s conversations with the company.
Moreover, the Shaw System loan servicing records list Ginwright as not having
consented to calls on his cell phone on June 1, 2013; June 17, 2015; July 20, 2015; September 8,
2015; and September 9, 2015.
Although Exeter claims that these notations suggest that
Ginwright never asked Exeter to stop making phone calls to his cell phone, these entries, viewed
in the light most favorable to Ginwright, provide some support for his contention that he told
Exeter to stop calling his cell phone number. If a factfinder were to determine that Ginwright
had revoked his consent, he could succeed on his TCPA and MTCPA claims, because there is no
dispute that the calls to Ginwright continued unabated until July 30, 2015. Indeed, Exeter’s
representatives acknowledged to Ginwright that they could not stop the Aspect system from
making autodialed calls to him. Because whether Ginwright revoked his consent to receive
autodialed calls on his cell phone remains a genuine issue of material fact, the Court cannot grant
summary judgment to Exeter on Ginwright’s TCPA and MTCPA claims. See, e.g. Lipscomb v.
Aargon Agency, Inc., No. PWG-13-2751, 2014 WL 5782040 at *4 (D. Md. Nov. 5, 2014)
(denying summary judgment on a TCPA claim because there was a genuine dispute of material
fact on whether the plaintiff had revoked consent to receive calls). The Motion for Summary
Judgment is therefore denied.
Motion for Class Certification
In his Motion for Class Certification, Ginwright seeks certification of the following class:
“all persons within the United States who, on or after February 26, 2012 1) received a non-
emergency telephone call from Exeter 2) to a cellular telephone 3) through the use of an
automatic telephone dialing system.” Am. Mot. Class Certification at 1, ECF No. 72.
A class action allows representative parties to prosecute not only their own claims, but
also the claims of other individuals which present similar issues. Thorn v. Jefferson-Pilot Life
Ins. Co, 445 F.3d 311, 318 (4th Cir. 2006). The use of a class action is primarily justified on the
grounds of efficiency, because it advances judicial economy to resolve common issues affecting
all class members in a single action. Id. Because of the need to protect the rights of absent
plaintiffs to assert different claims and of defendants to assert facts and defenses specific to
individual class members, courts must conduct a “rigorous analysis” of whether a proposed class
action meets the requirements of Federal Rule of Civil Procedure 23 before certifying a class.
See id. Courts have wide discretion to certify a class based on their familiarity with the issues
and potential difficulties arising in class action litigation. See, e.g. Ward v. Dixie Nat. Life Ins.
Co., 595 F.3d 164, 179 (4th Cir. 2010). A plaintiff has the burden to show that all of the
necessary prerequisites for a class action have been met. Gunnells v. Healthplan Serv., Inc., 348
F.3d 417, 458 (4th Cir. 2003).
The first of these prerequisites is that the class must exist and be “readily identifiable” or
“ascertainable” by the court through objective criteria. EQT Prod. Co v. Adair, 764 F.3d 347,
359-60 (4th Cir. 2014). The class must then satisfy all four elements of Rule 23(a): numerosity,
commonality, typicality, and adequacy. First, the proposed class must be so numerous that
“joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Second, a class must have
“questions of law or fact common to the class” which are capable of classwide resolution, such
that the determination of the truth or falsity of the common issue “will resolve an issue that is
central to the validity of each one of the claims in one stroke.” Fed. R. Civ. P. 23(a)(2); WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Third, the named plaintiff must be
“typical” of the class, such that prosecution of the named plaintiff’s claim will “simultaneously
tend to advance the interests of the absent class members.” Fed. R. Civ. P. 23(a)(3); Deiter v.
Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. 2006). Finally, the named plaintiff must “fairly
and adequately protect the interests of class” without a conflict of interest with the absent class
members. Fed. R. Civ. P. 23(a)(4); Ward, 595 F.3d at 179-80.
If the named plaintiff satisfies each of these requirements under Rule 23(a), the Court
must still find that the proposed class action fits into one of the categories of class action under
Rule 23(b) in order to certify the class. Under Rule 23(b)(1), a class action may be maintained if
the plaintiff shows that absent a class action, there is a risk of “inconsistent or varying
adjudications” across individual class members that would result in “incompatible standards of
conduct” for the defendant, or a risk of individual adjudications resulting in dispositive rulings
that “substantially impair or impede” the ability of other plaintiffs to protect their interests. Fed.
R. Civ. P. 23(b)(1). A class action is also maintainable if the defendant has “acted or refused to
act on grounds that apply generally to the class,” such that injunctive or declaratory relief
applying to the whole class is appropriate. Fed. R. Civ. P. 23(b)(2). Finally, a class action may
be maintained under Rule 23(b)(3) if common questions of law or fact “predominate over any
questions affecting only individual members” and a “class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The
predominance and superiority requirements under Rule 23(b)(3) are designed to ensure that the
class action “achieve[s] economies of time, effort, and expense, and promote . . . uniformity of
decision as to persons similarly situated, without sacrificing procedural fairness of bringing
about other undesirable results.” Gunnells, 348 F.3d at 424 (quoting Amchem Prods. v. Windsor,
521 U.S. 591, 615 (1997)). If the named plaintiff satisfies all of the Rule 23(a) requirements and
one of the Rule 23(b) requirements, then class certification is appropriate.
There is no significant dispute that Ginwright’s proposed class is ascertainable and meets
the requirements of numerosity and adequacy. Exeter has over 300,000 customers and maintains
records of when a customer was called and what type of phone was called. Nor is there any
indication that Ginwright’s interests conflict with those of the absent class members or that his
counsel is not capable of managing a large class action. However, the prerequisites of typicality
and commonality are at issue.
To meet the typicality requirement, a plaintiff must show that the class representative’s
claims and defenses are “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).
Specifically, the “interest in prosecuting” the class representative’s own case must
“simultaneously tend to advance the interests of the absent class members.” Deiter, 436 F.3d at
466. The plaintiff’s claim “cannot be so different from the claims of absent class members that
their claims will not be advanced by” proof of the plaintiff’s own individual claim. Id. at 466-67.
In analyzing this question, a court compares the class representative’s claims and defenses with
those of the absent class members, considers the facts needed to prove the class representative’s
claims, and assesses the extent to which those facts would also prove the claims of the absent
class members. Id. These claims do not have to be factually or legal identical, but the class
claims should be fairly encompassed by those of the named plaintiffs. Broussard v. Meineke
Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998).
Here, Ginwright is similarly situated to other class members in that he is seeking to hold
Exeter liable for making repeated, autodialed calls to his cell phone without his consent.
Although Exeter notes that the success of Ginwright’s claims may turn on specific facts relating
to whether he consented to such calls or revoked such consent, advancement of Ginwright’s
claims would likely advance the claims of other class members.
Ginwright’s claims and
defenses will center on arguments that the Aspect system constitutes an ATDS within the
meaning of the TCPA, that he did not consent to the autodialed calls, whether through any
documents signed in connection with the purchase of his car or in his communications with
Exeter, and that he orally revoked any such consent. Where Ginwright, in advancing his claims,
would argue that credit applications and RISCs do not establish consent, and that the lack of a
record of revocation of consent does not preclude a finding of revocation, he would be taking
positions that “simultaneously tend to advance the interests of the absent class members,” who
will likewise need to defend against similar arguments that they consented and failed to revoke.
Deiter, 436 F.3d at 466. Thus, the Court finds that the typicality requirement has been satisfied.
When considering commonality, the Court looks for a common contention across the
class that is capable of classwide resolution. Wal-Mart, 564 U.S. at 350. This prerequisite goes
beyond the mere presence of “common questions of law or fact” and instead requires that
answering such questions “will resolve an issue that is central to the validity” of each class
member’s claims “in one stroke.”
Ginwright alleges that common questions include
“whether Exeter utilized an ATDS to dial Class members’ cellphones”; “whether Exeter
knowingly or willfully violated the TCPA”; “whether Exeter should be enjoined from engaging
in similar conduct in the future”; “and whether Exeter is liable to the Class for damages, and the
measure of such damages.” Am. Mot. Class Certification at 18, ECF No. 72.
dialing system used by Exeter to call class members’ cell phones is a common issue that would
resolve a required element of a TCPA claim across the class. Exeter, however, asserts that it
used two different dialing systems, Five9 and Aspect, during the identified time period of the
class action dating back to February 2012.
To the extent the technology is different, the
resolution of whether one of the dialing systems is an ATDS may not have classwide
applicability. Moreover, there is no serious dispute whether the Aspect system qualifies as an
ATDS system. Thus, that issue is not one that is “apt to drive the resolution of the litigation.”
See Wal-Mart, 564 U.S. at 350 (citation omitted).
Whether Exeter’s calling of class members constituted knowing and willful TCPA
violations is not a common issue across the class because resolution of that question for a
particular class member likely depends on the circumstances surrounding the individual class
member’s consent, or lack of consent, to receive autodialed calls from Exeter, whether the class
member revoked consent, and whether Exeter complied with those instructions. The questions
whether Exeter should be enjoined or is liable for damages are issues related to remedies only,
and whether there should be an injunction or damages applicable to any individual class
member’s situation would likewise depend on the consent and revocation issues, as a class
member who had consented and never revoked would not be entitled to an injunction against
further calls or damages for past calls. Thus, where the proposed class has been so broadly
defined as to draw no distinctions between the type of calling system used and whether class
members consented to receive calls or later revoked such consent, the Court cannot find that the
commonality requirement has been established. See, e.g., Hicks v, Client Servs. Inc., No. 0761822-CIV, 2008 WL 5479111, at *8 (S.D. Fla. Dec. 11, 2008) (holding in a TCPA claim
against a debt collection agency that class certification for all Florida citizens who received a call
from the defendant on their cell phones via an ATDS over a four year period was not appropriate
on commonality and predominance grounds because class adjudication could not be
accomplished “without the trial degenerating into mini-trials on [the] consent of every class
member”); Balthazor v. Cent. Credit Servs., Inc., No. 10-62435-CIV, 2015 WL 6725872 at *5
(S.D. Fla. Dec. 27, 2012) (denying class certification on commonality and predominance
grounds where consent issues were individualized).
Even if Ginwright could satisfy the Rule 23(a) factors, the Court finds that this case
cannot be maintained under any of the Rule 23(b) categories. Ginwright seeks certification
under Rule 23(b)(3), arguing that the common issues of the class predominate over any
individual issues, and a class action is a superior method to resolve the controversy. Although
similar to Rule 23(a)’s commonality requirement, the test for predominance under Rule 23(b)(3)
is “far more demanding” and “tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.” Amchem, 521 U.S. at 623-24. Here, the most likely common
issue, whether Exeter’s dialing system qualifies as an ATDS, does not appear to be in serious
dispute and cannot be deemed to predominate over the individualized issues of consent, which
will drive the outcome of individual claims. In Gene & Gene LLC v. BioPay LLC, 541 F.3d 318
(5th Cir. 2008), the United States Court of Appeals for the Fifth Circuit held that class
certification of a TCPA claim based on blast faxes was inappropriate when there was no
generalized, classwide basis to establish whether individual class members had consented to
receipt of such faxes. Id. at 328-29. As discussed above, Ginwright’s claim revolves around
individualized questions of consent and the revocation of consent.
Exeter’s customers do not complete a uniform credit application or RISC but instead
complete non-standard forms received from a variety of different car dealerships that differ in
certain language and terms. Whether an Exeter customer provided a cell phone number on such
forms, or in oral conversations with Exeter, would differ on a case-by-case basis, and certainly
whether such a customer revoked consent, whether orally or in writing, is an individualized
question. Indeed, Ginwright persuasively argued, in opposing summary judgment, that Exeter’s
standard practices to ask certain questions during confirmation calls or welcome calls cannot be
relied upon to establish consent in all cases. Thus, this is not a case in which the issues of
consent and revocation can be resolved as a common issue with a single classwide answer, such
as when all class members completed the same application form upon which the determination of
consent can be made in a global manner, or when the defendant received all of the class members
phone numbers through a single database. See, e.g., Manno v. Healthcare Revenue Recovery
Grp., LLC, 289 F.R.D. 674, 688 (S.D. Fla. 2013); Kavu v. OmniPak Corp., 246 F.R.D. 642, 6475
(W.D. Wash. 2007).
This is also not a case in which consent is merely a theoretical issue. Exeter has
established that as a matter of law, provision of a cell phone number in a credit application would
constitute consent, see supra Part I.C., and that it has a standard practice of seeking consent from
customers. See Jamison v. First Credit Servs., 290 F.R.D. 92, 107 (N.D. Ill. 2013) (finding a
lack of predominance where the defendant had shown evidence that a significant percentage of
the putative class had consented to receive calls). Here, the Court finds that, as in Gene and
Gene, the individualized issues relating to consent and revocation, on which claims will
ultimately turn, predominate over any common issues such that “myriad mini-trials cannot be
avoided” on the issues of consent and revocation. Gene and Gene, 541 F.3d at 329.
This conclusion is consistent with other district courts that have declined to certify TCPA
classes of debtors under Rule 23(b)(3) on the grounds that common issues do not predominate
over individualized ones. See, e.g., Blair v. CBE Grp., Inc., 309 F.R.D. 621, 631 (S.D. Cal.
2015) (finding no predominance of common issues under Rule 23(b)(3) where class members’
debts “arose in different contexts” requiring “extensive individual inquiries” to determine
whether class members provided their cell phone numbers to the creditor); Jamison, 290 F.R.D.
at 107; Ung v. Universal Acceptance Corp., 319 F.R.D. 537, 543 (D. Minn. 2017) (finding a lack
of predominance where “consent is too individualized an inquiry, overwhelming any questions
common to the class”); see also Espejo v. Santander Consumer USA, Inc., No. 12-C-9431, 2016
WL 6037625 at *9-10 (N.D. Ill. Oct. 14, 2016) (denying class certification for a TCPA claim
involving debt collection calls based on the predominance of individual consent issues).
The cases upon which Ginwright relies for his argument for class certification are not
persuasive. In Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013), and Krakauer v.
Dish Network LLC, 311 F.R.D. 384 (M.D.N.C. 2015), the TCPA violation involved unsolicited
advertisements or solicitations, not debt collection calls, and there was no claim of individualized
consent issues. Holtzman, 728 F.3d at 683; Krakauer, 311 F.R.D. at 388; see also Karen S.
Little, L.L.C. v. Drury Inns, Inc., 306 S.W.3d 577, 579-80 (Mo. Ct. App. 2010) (certifying a class
arising from unsolicited faxes where there was no claim of individualized consent). The cases
offered by Ginwright in which courts have certified classes of debtors for TCPA claims involve
calls to individuals located through “skip tracing,” a practice consisting of the analysis of large
datasets to identify a debtor’s phone number that has not previously been provided, such that
there is no argument that the debtors had consented to receive calls at the newly discovered
phone number. See Caldera v. Am. Med. Collection Agency, 320 F.R.D. 513, 517 n.5, 519 (C.D.
Cal. 2017); see also McMillon v. Rash Curtis & Assoc., No. 16-cv-03396-YGR, 2017 WL
3895764 at *2, 5 (N.D. Cal. Sept. 6, 2017). Therefore, the Court finds that Ginwright has not
made the required showing under Rule 23(b)(3).
Ginwright also argues for certification under Rule 23(b)(1), based on the risk of an
individual decision that would “substantially impair or impede” the ability of other class
members to prosecute their claims, such as a ruling on whether the Aspect system qualifies as an
Fed. R. Civ. P. 23(b)(1)(B). Rule 23(b)(1) is most appropriately used for those cases
where a decision in an individual plaintiff’s case would have an “adverse practical effect” on the
rights of other putative class members because of “the shared character of rights claimed or relief
awarded,” such as a decision that distributes property, orders the payment of a dividend, or
requires payments from a limited fund that must be apportioned among prevailing plaintiffs.
Fed. R. Civ. P. 23(b)(1)(B) advisory committee’s note to 1966 amendment; Ortiz v. Fibreboard
Corp., 527 U.S. 815, 834-35 (1999). In such cases, a decision on the individual claim directly
prejudices the ability of other class members to bring their own claims. See 7AA Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1774 (3d ed. 2005).
As discussed above, there is little risk of a ruling that the Aspect system did not qualify as
an ATDS. Rather, the primary issue in this case will be whether Ginwright consented to receive
calls or revoked such consent, which are individualized inquiries that would not prejudice other
potential class members. For example, if a jury found that Ginwright gave consent to receive
calls from Exeter and never revoked that consent, the ruling would not prevent a different Exeter
customer from bringing a TCPA claim and establishing that there was no consent, or that it was
revoked. Thus, a class action may not be maintained under Rule 23(b)(1). Indeed, the Court is
not aware of any TCPA class action that has been certified under Rule 23(b)(1).
Finally, Ginwright’s claim for certification under Rule 23(b)(2) also fails. First, the claim
for monetary damages cannot be certified under this provision. See Wal-Mart, 564 U.S. at 360
(holding that claims for monetary relief cannot be certified under Rule 23(b)(2) when “monetary
relief is not incidental to the injunctive or declaratory relief”). Rule 23(b)(2) also does not
extend to allow certification “in cases in which the appropriate final relief relates exclusively or
predominantly to money damages.” Fed. R. Civ. P. 23(b)(2) advisory committee’s note to 1966
amendment (emphasis added); Thorn v. Jefferson-Pilot Life, 45 F.3d 311, 329 (4th Cir. 2006);
Zimmerman v. Bell, 800 F.2d 386, 389 (4th Cir. 1986). Where Ginwright seeks monetary
damages of up to $1,500 per call and does not appear to need an injunction because he no longer
receives calls from Exeter, the Court concludes that Ginwright’s case predominantly relates to
Second, Rule 23(b)(2) requires that the defendant have acted on grounds that “apply
generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). Here, the legality of autodialed calls to individual class
members depends on whether the class member consented to receive calls and never revoked that
consent. Thus, where some class members suffered legal injury from the calls and some did not,
there is no “cohesiveness among class members with respect to their injuries, the absence of
which can preclude certification.” Shook v. Bd. of Cty. Comm’rs of Cty. of El Paso, 543 F.3d
597, 604 (10th Cir. 2008); see also Thorn, 445 F.3d at 330. Because appropriate injunctive relief
would require individualized assessments of whether particular class members are entitled to an
order barring additional calls to them, certification under Rule 23(b)(2) is not warranted. See
Shook, 543 F.3d at 604. Third, although Ginwright’s Motion for Class Certification nominally
seeks an injunction, it does not specify what the injunction would entail beyond “precluding
Defendants from continuing to do business in this matter." Am. Mot. Class Certification at 22,
ECF No. 72. A claim for an injunction that simply orders a defendant to comply with the TCP A
and follow the law is not a proper for class certification under Rule 23(b )(2).
See Ung, 319
F.R.D. at 544 (denying Rule 23(b)(2) and Rule 23(b)(3) class certification for a TCPA claim
issues would predominate).
Thus, the class is also not
maintainable under Rule 23(b )(2).
Where the proposed class does not satisfy the commonality requirement of Rule 23(a)(2)
or the predominance requirement of Rule 23(b)(3), and it may not be maintained under any other
prong of Rule 23(b), the Court will deny the Motion for Class Certification.
For the foregoing
Motion for Summary Judgment
Ginwright's Motion for Class Certification is DENIED. A separate Order shall issue.
Date: November 28,2017
United States Distric
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