Lori Shamblin filed a putative class action against Obama For America, alleging that she had received two unsolicited telephone calls to her cellular phone that were made with an auto-dialer and used pre-recorded messages, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). On April 27, 2015, the district court denied Shamblin’s motion for class certificastion. Shamblin v. Obama, No. 13-cv-2428, 2015 U.S. Dist. LEXIS 54849 (M.D. Fla. April 27, 2015).
The court denies class certification on the grounds that the plaintiff had failed to prove commonality and that individualized issues predominated over questions common to the class. Specifically, the district court first found that the plaintiff had failed to propose a reliable means to determine whether a particular telephone number that was dialed “was assigned to a cellular telephone at the time of the call.”
The district court also held that consent for the calls was obtained in a variety of ways, and that the plaintiff had failed to prove how the issue of consent could resolved on a classwide basis. Shamblin argued that, because the defendant bears the burden of proof as to consent, the defendant was required to show that the issue of consent could not be resolved classwide. The district court rejected this argument, noting that the plaintiff “is not entitled to a presumption that all class members hailed to consent and Defendants have a constitutional right to a jury determination as to whether any person consented to receiving calls to their cellular telephone.”
Accordingly, the district court denied class certification.
