Well, here's something you don't like to see. A plaintiff files a patently inadequate certification petition—lacking even basic evidence on the issue of numbers—but gets both another bite at the apple and a little free advice from the court on how to get the case certified. No bueno.
The case is Molinari v. Fin. Asset Management. Sys., No. 18 C 1526, 2020 U.S. Dist. LEXIS 134045 (ND Ill. July 29, 2020) and the alleged facts are quite murky. Specifically, the plaintiff alleges that the defendant debt collection agency routinely obtained skip trace phone numbers from debtors and loaded them into an autodialer for collection efforts. Something like this can get you into big trouble.
Despite the seemingly great case, the plaintiff simply could not overcome the procedural hurdles required to obtain Rule 23 certification. In fact, the court concluded that the plaintiff had not presented admissible evidence on the issue of numeracy—a crucial (and fundamental) Rule 23 requirement for a party seeking certification. While the plaintiff essentially argued, “Oh, we know they've been doing this all along,” the motion for certification contained no evidence to that effect – just allegations and allegations.
Similarly, on the issue of commonalities, the court noted that the plaintiff appeared to simply assume that common issues existed without lifting a finger to actually identify them or provide evidence that common findings existed, which are crucial to the outcome of the case.
These types of failures are actually quite common in TCPA class actions – these cases are not properly certified in most cases – but what happens next is very unusual. Rather than denying certification and dismissing the claims of unnamed class members, the court expressly found that the denial of certification was without prejudice. In addition, the court particularly assisted the plaintiff by identifying the evidentiary deficiencies in the original application, namely the need for evidence regarding quantity, adequacy of counsel, and commonality.
To cut to the chase, the court was specifically concerned with the evidence required of the plaintiff in his next attempt at commonality: “He should make sure he establishes a connection[s] the common evidence he proposes to use for each proposed class “on the elements necessary to establish a prima facie case for any cause of action” he proposes to pursue on behalf of that class.”
My goodness. That's already a hint. Normally, a putative class attorney has to figure this sort of thing out on his own.
In any case, what should have been a major victory for the defense appears to be just a prelude to a potentially inevitable certification. We'll keep an eye on this.
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