IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JASON BENNETT, etc., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0330-WS-M

 )

BOYD BILOXI, LLC, etc., )

 )

Defendant. )

ORDER

This matter is before the Court on the plaintiff’s motion for preliminary 

approval of class action settlement agreement. (Doc. 79). The plaintiff and the 

defendant have each filed a brief in support of the motion. (Docs. 80, 85).

The second amended complaint, (Doc. 83), alleges a violation of the 

Telephone Consumer Protection Act (“the Act”), and specifically a regulation 

promulgated pursuant thereto. The second amended complaint challenges the 

defendant’s practice of calling persons, without their prior express written consent, 

by means of an automatic telephone dialing system or with the use of a prerecorded voice message, to deliver a message including “telemarketing” or 

“advertisement” as defined by the regulation.

Before reaching the request for preliminary approval of the proposed 

settlement, the Court must resolve the threshold issue of whether a class should be 

certified. The parties seek certification under Rules 23(a) and 23(b)(3). The 

requirements of these rules apply with at least equal vigor in the settlement-class 

context:

Confronted with a request for settlement-only class 

certification, a district court need not inquire whether the case, if 

tried, would present intractable management problems, ..., for the 

proposal is that there is to be no trial. But other specifications of 

the Rule – those designed to protect absentees by blocking 

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unwarranted or overbroad class definitions – demand undiluted, 

even heightened, attention in the settlement context. Such attention 

is of vital importance, for a court asked to certify a settlement class 

will lack the opportunity, present when a case is litigated, to adjust 

the class, informed by the proceedings as they unfold.

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); accord Ortiz v. 

Fibreboard Corp., 527 U.S. 815, 848-49 (1999) (“When a district court, as here, 

certifies for class action settlement only, the moment of certification requires 

heightened attention ... to the justifications for binding the class members.”) 

(internal quotes omitted). 

Subject to certain exceptions not presently relevant, the class proposed by 

the settlement would consist of “all persons who, since October 16, 2013 through 

the date the class is certified, received a telephone call to a residential or cellular 

telephone number initiated by, on behalf of or at the direction of Boyd Biloxi 

which used an artificial and/or pre-recorded voice message or was placed by an 

automatic telephone dialing system.” (Doc. 79-1 at 8). The Court notes that this 

is a substantially more expansive class than that requested in the first amended 

complaint, (Doc. 23 at 9), in at least the following respects: (1) it reaches both 

residential and cellular phones, not just cellular; (2) it reaches calls placed both by 

artificial and/or pre-recorded voice message and those placed by automatic 

dialing, not just calls placed by automatic dialing; (3) it reaches all calls, not just 

calls containing “advertisement” or “telemarketing”; and (4) it reaches all persons

that received the described calls, not just those that received such calls without 

having given prior express written consent. This expanded class definition stems 

from the second amended complaint, (Doc. 83 at 7), which was filed with the 

defendant’s blessing in association with the instant motion.1

The Court does not suggest that a settlement class can never be more 

expansive than the class sought by the plaintiff, but it is unusual for a defendant 

 1 The docket entry description provided by the plaintiff states that the purpose of 

the second amended complaint is to “narrow[w] the scope of the putative class.” It 

appears, however, to have accomplished exactly the opposite.

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voluntarily to give more than a plaintiff has demanded, and such generosity might 

be prompted by considerations that work to the detriment of absent class members. 

While the Court presently draws no such firm conclusion, this circumstance 

underscores the Supreme Court’s admonition to scrutinize settlement classes 

closely.

The Rule 23(a) requirements for certification of any class action are: (1) 

numerosity; (2) commonality; (3) typicality; and (4) adequacy. The additional 

requirements for certification under Rule 23(b)(3) are: (5) predominance; and (6) 

superiority. Amchem, 521 U.S. at 613, 615. Despite the parties’ briefing, (Doc. 80 

at 3-9; Doc. 85 at 4-5), several of these elements appear to be in question.

As to commonality, the plaintiff states there “are only two issues” in this 

lawsuit and that they are common to all class members: whether the calls they 

received constitute “advertising” and/or “telemarketing” and whether the class 

members gave prior express written consent to receive the calls. (Doc. 80 at 4-5).2 

No doubt these are questions that must be answered as to each class member, but 

the plaintiff has not shown that the answer to these questions must be the same for 

each class member. It would seem that whether any particular class member gave 

prior express written consent would depend on what that class member did, and 

the plaintiff has not suggested that all class members did the same thing; on the 

contrary, he notes the defendant’s argument that class members gave consent “in a 

variety of ways over time.” (Doc. 80 at 11). Similarly, whether a call constituted 

advertisement or telemarketing under the governing regulation would seem to 

depend on the content of the message, and the plaintiff has not attempted to show 

that the messages – more than 400,000, (Doc. 80 at 10), spread over the relevant 

two-year period and across the entire continent – never varied, or never varied in 

any meaningful way. Nor has the plaintiff addressed the degree of variation in 

resolution of a nominally common issue that may be tolerated before the question 

 2 The plaintiff adds “telephone solicitation” to this list, (id.), but that appears to lie 

beyond the scope of the second amended complaint.

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is no longer “common to the class” within the contemplation of Rule 23(a)(2). As 

the plaintiff acknowledges, (Doc. 80 at 4), commonality requires that the action 

“must involve issues that are susceptible to class-wide proof.” Murray v. 

Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (emphasis added). The plaintiff has 

failed to show that its identified common questions meet this standard. 

As to typicality, the first amended complaint repeatedly restricts the 

plaintiff’s claim to one involving calls to his cellular phone, and it is clear he 

received no objectionable calls on his residential line, yet the proposed class 

extends to persons receiving calls on residential lines. While it is not clear that 

there is any meaningful legal difference between the two sorts of phone lines, the 

plaintiff’s careful restriction of his claim and the previously proposed class to 

cellular phones indicates that his claim might not be typical of claims regarding 

residential lines. Likewise, if the messages received have varied over time and/or 

space, it is not clear the plaintiff’s claim – restricted to a few calls over a fourmonth period – is typical of all or most class members. Finally, the defendant 

itself questions whether the plaintiff’s claim is typical of those class members who 

joined the rewards program by different methods. (Doc. 85 at 4-5). The plaintiff, 

who ignores these tensions, has failed to show that his claim is typical of those of

the class.

As noted, the only legal claim in this lawsuit is that the defendant placed 

telephone calls, by certain means and without prior express written consent, that 

contained “telemarketing” or “advertisement” under the governing regulation. 

The proposed class, however, is defined to include persons who received calls so 

placed without their prior express written consent, regardless of whether the calls 

they received contained telemarketing or advertisement, and the claims procedure 

does not require any class member to demonstrate, or even assert, that the call(s) 

he or she received constituted telemarketing or advertisement. (Doc. 79-1 at 16). 

This appears to mean that any class member that received any pre-recorded or 

automatically dialed call from the defendant for any purpose (e.g., notification of 

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an event, reminder of a deadline, request for payment) without prior express 

written consent can recover in a lawsuit that targets only unlawful telemarketing 

and advertisement. It is not immediately apparent how the plaintiff’s claim could 

be typical of such a class member’s (non-existent) claim.

3

As to adequacy, the same observations apply. Moreover, it is not certain 

that the plaintiff has not proposed a class, and a class settlement, that 

disadvantages certain class members to the benefit of the plaintiff and/or others in 

effecting a settlement. For example, by (1) expanding the class to include persons 

that received calls which did not include advertisement or telemarketing, and (2) 

broadly releasing every conceivable claim related to the calls, (Doc. 79-1 at 7), the 

plaintiff has structured a settlement in which persons with no viable claim in this 

lawsuit, but with claims under other laws (for example, invasion of privacy and 

other state claims, FDCPA and other federal claims), may lose all rights they 

might otherwise have to pursue such claims. On the flip side, it is not clear how 

the plaintiff has protected the interests of those with a viable claim by 

simultaneously agreeing to both a fixed recovery fund and participation in that 

fixed fund by persons with no viable claim in this lawsuit, thereby at least 

potentially diluting the recovery of those with a viable claim. The Court does not 

say that this situation reflects inadequacy of representation, only that the plaintiff 

must come to grips with these and other issues if he hopes to persuade the Court to 

certify the proposed class.4

 3 Indeed, it is not clear that the Court may properly certify a class specifically 

designed to include persons that could not possibly have a claim under the only legal 

theory advanced in the lawsuit.

4 The Court is familiar with plaintiff’s counsel from other lawsuits, but it still 

finds the plaintiff’s effort to establish counsel’s credentials to pursue this action as class 

counsel somewhat pro forma. Unsworn assertions in brief, (Doc. 80 at 6), an eight-line 

declaration, (Doc. 80-1), and a resume’ consisting mostly of a listing of reported cases, 

(Doc. 80-2), is not the strongest showing imaginable. It certainly does not address the 

factors that the plaintiff himself identifies as critical to the determination of the adequacy 

of counsel. (Doc. 80 at 6). 

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As to predominance, the plaintiff cannot establish it without first 

establishing commonality. The plaintiff asserts that predominance stems from the 

prior-express-written-consent issue, (Doc. 80 at 7), but, as discussed above, he has 

failed to show that this qualifies even as a common issue. The Court also reminds 

the plaintiff that “the predominance criterion is far more demanding” than the 

commonality requirement. Amchem, 521 U.S. at 623. The plaintiff stresses the 

Amchem Court’s observation that predominance is satisfied in “certain cases 

alleging consumer ... fraud,” 521 U.S. at 624, but without demonstrating that this 

is such a case. The advisory committee comments to which the Supreme Court 

cited confirm that a consumer fraud case “may be unsuited for treatment as a class 

action if there was material variation in the representations made or in the kinds or 

degrees of reliance by the persons to whom they were addressed.” Fed. R. Civ. P. 

23 advisory committee notes 1966 amendment. These are exactly the concerns 

identified by the Court in noting the plaintiff’s failure to show that the telephone 

messages were materially unvaried and that the existence vel non of prior express 

written consent could be determined for the class as a whole without individual 

determinations. 

The plaintiff says that class treatment is superior to other options due to 

“the small amount of damages involved in each individual claim,” (Doc. 80 at 7), 

and he describes the class members’ claims as “negative value claims,” where the 

costs of litigation exceed expected individual recovery. (Id. at 8). But the plaintiff 

has not shown this to be so. According to the second amended complaint, the Act 

provides for a minimum recovery of $500 for each call in violation of the 

regulation, and a maximum recovery of $1,500 for each such call. (Doc. 83 at 3). 

The plaintiff identifies eight calls he received in violation of the Act and 

regulation, (id. at 4-5), meaning his minimum recovery is $4,000 and his 

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maximum $12,000.5 Moreover, the Act provides for recovery of attorney’s fees,

which suggests no inability to attract counsel and no diminution of a plaintiff’s 

recovery in order to compensate counsel. The plaintiff has failed to explain how, 

or demonstrate that, he or any other class member holds a negative value claim 

under these circumstances.

Rule 23 sets forth specific matters for a court to consider in weighing the 

relative superiority of a class action compared with other mechanisms. Fed. R. 

Civ. P. 23(b)(3)(A)-(D). The Alchem decision renders the last of these 

considerations irrelevant in the settlement class context, 521 U.S. at 620, but the 

others remain intact. The plaintiff, however, has not acknowledged or addressed 

them, much less offered legal authority or analysis in support. Moreover, the 

defendant “continues to believe that the class mechanism here may not constitute 

the superior method to resolution of these legal issues.” (Doc. 85 at 5).

Finally, the defendant questions whether the plaintiff can establish that 

“class members are identifiable,” which the defendant considers “a difficult and 

cumbersome task in a world where cell phone subscribers frequently drop and 

exchange cellular telephone numbers.” (Doc. 85 at 5). It is not clear how a class 

action could be a superior mechanism if the identity of the class membership is 

sufficiently problematic.

The Court has formed no fixed opinion whether any of the issues identified 

herein – or any others that may be lurking6 – are or might be fatal to certification. 

But the Court is of the firm opinion that the plaintiff has not come close to bearing 

his burden of persuading the Court to certify the proposed settlement class. 

According to the proposed settlement, the defendant is prepared to part with up to 

 5 Dividing the estimated number of calls by the estimated number of class 

members, the average class member received about six calls and so has a claim for about 

$3,000 to $9,000.

6 The parties should not assume there are no additional problems with their 

presentation. The Court has addressed only those that seem most obvious on first 

acquaintance.

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$12 million, up to $2 million of which is earmarked for plaintiff’s counsel, and the 

plaintiff is prepared to bind almost 70,000 individuals to the parties’ proposed 

resolution. There is certainly enough at stake to incentivize the plaintiff to identify 

and obtain the evidence, and to research and effectively present the legal 

argument, needed to support certification.

“[A] plaintiff still bears the burden of establishing every element of Rule 

23, ... and a district court’s factual findings must find support in the evidence 

before it.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). The 

plaintiff is thus ordered to file and serve, on or before January 7, 2016, a 

supplement to the instant motion that presents whatever evidence and legal 

argument he believes necessary and sufficient to bear his burden. The defendant is 

ordered to file and serve, on or before January 21, 2016, its response to the 

plaintiff’s supplemental filing. 

DONE and ORDERED this 7th day of December, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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