On September 21, a federal judge in the U.S. District Court for the District of Maryland denied class certification in a putative class action under the Telephone Consumer Protection Act (TCPA), which restricts automated and prerecorded calls to cell phones. The opinion centered around prerecorded appointment reminder calls, offering a useful roadmap for defendants facing similar “robocall” class claims.
Link to Background Background
In Smith v. ExamWorks, LLC, the plaintiff alleged that ExamWorks, a scheduling vendor that coordinates independent medical examinations (IMEs) for GEICO claimants, violated the TCPA by sending prerecorded appointment reminder calls to claimants’ cell phones without consent. The proposed class was narrowly defined to include only those claimants who did not themselves provide their cell phone number to ExamWorks, the theory being that any number obtained secondhand (through GEICO) could not supply the “prior express consent” the TCPA requires.
Link to Why Certification Failed Why Certification Failed
Judge Paula Xinis denied certification on multiple independent grounds:
Ascertainability. The plaintiff’s expert identified roughly 5,552 phone numbers that received qualifying prerecorded calls, but that method couldn’t distinguish claimants who later gave their number directly to an ExamWorks scheduler (which ExamWorks did routinely, but inconsistently documented) from those who never did. Sorting the two groups would require manually reviewing individual case notes, defeating administrative feasibility.
Typicality and adequacy. The named plaintiff’s own claim didn’t fit the class he sought to represent. His consent dispute centered on GEICO giving ExamWorks the wrong number, and his attorney’s revocation of consent, not on whether he personally withheld his number from ExamWorks. The court also pointed to a more unusual wrinkle: Smith testified that he had thrown the cellphone at issue into the Mississippi River. Because his claim rested on his having used two separate phones and phone numbers at the same time, the destroyed device deprived the defendants of any ability to forensically verify his account, a problem that, notably, has no bearing on the rest of the putative class. The court also found him an inadequate representative based on that he knew almost nothing about the litigation or his role as class representative, and was unaware of a $20,000 individual settlement offer. The court additionally flagged (though didn’t rely on as dispositive) a concerning contingency fee arrangement that could exceed 50% of recovery, suggesting counsel’s financial interest in avoiding individual settlement.
Predominance. This was the heart of the ruling. The court held that under the TCPA’s plain language, consent attaches to “the call,” not specifically to the use of a prerecorded voice, meaning that providing a phone number for a particular purpose generally supplies consent to be called about that purpose, consistent with Federal Communications Commission guidance. Because ExamWorks obtained and confirmed contact numbers through varied, individualized interactions with claimants and their attorneys, determining consent (or its revocation) on a classwide basis would require claimant-by-claimant mini-trials rather than common proof.
Link to Takeaways Takeaways
The opinion reinforces several recurring defense themes in TCPA class litigation: consent under the TCPA is tied to the called number’s purpose rather than requiring separate agreement to a prerecorded message; variability in how a company documents and confirms contact information can defeat ascertainability and predominance; and courts will scrutinize both the named plaintiff’s personal fitness to serve as class representative and plaintiff-side fee arrangements that may misalign incentives between counsel and class members. The case is also a reminder that courts will look closely at whether a named plaintiff’s individual circumstances, including idiosyncratic evidentiary problems, make him a poor fit to carry defenses the defendant would otherwise raise against the full class.