by Aaron Othmer, Esq.
Armstrong Teasdale LLP
USFN Member (KS, MO)

In a recent opinion by the Missouri Court of Appeals for the Eastern District, a circuit court’s order certifying a class of plaintiffs in a dispute alleging violations of the Telephone Consumer Protection Act (TCPA) was affirmed. In Smith v. Leif Johnson Ford, Inc., No. ED 109494, 2021 WL 3626402, (Mo. Ct. App. Aug. 17, 2021), Leif Johnson Ford, Inc. (Ford) appealed an order of the Circuit Court of St. Louis County (Circuit Court) certifying a class action filed by Dennis N. Smith, Jr. (Smith) individually and on behalf of all other similarly situated plaintiffs. Smith, a Missouri resident, filed a putative class action against Ford, a Texas car dealership doing business nationwide and in Missouri. Smith, 2021 WL 3626402 at *1. Smith alleged Ford violated the TCPA by sending ringless voicemails promoting Ford's automotive sales and service business without prior express written consent to the cellphones of Smith and the class members in May 2019. 

In the Circuit Court case, Smith produced a call-log spreadsheet listing the phone numbers that received the ringless voicemails (the Manifest). Id. The Manifest contained 3,769 entries of individuals with associated phone numbers and addresses. Id. The entries listed Texas addresses and reflected various area codes. Id. Two phone numbers in the Manifest had Missouri area code (314) phone numbers, one of which belonged to Smith. Id.

On appeal, Ford raised two points of contention: first, that the Circuit Court erred in certifying the class because Smith’s claims are different from and atypical of the class, and Smith is not a member of the class; and second, that the Circuit Court erred in certifying the class because Smith’s individual issues predominate over common issues of the class.  See Smith, 2021 WL 3626402 at * 2. Ultimately, the Missouri Court of Appeals weighed the common issues of the class against member-specific issues to make its determination.

The Issue 
Pursuant to Missouri Supreme Court Rule 52.08, one or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Mo. Sup. Ct. R. 52.08(a)(emphasis added). 

An action may be maintained as a class action if the requirements of Mo. Sup. Ct. R. 52.08(a) are met, and in addition, one of three subsections of Mo. Sup. Ct. R. 52.08(b) is met, including the common-question-predominance requirement of Rule 52.08(b)(3): 

“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.”

Analysis and Impact
The Missouri Court of Appeals agreed with the Circuit Court’s analysis that the class satisfied Rule 52.08(a)’s requirement for typicality. “Typicality ‘is fairly easily met so long as other class members have claims similar to the named plaintiff.’” Smith, 2021 WL 3626402, at *4. “To satisfy the typicality requirement, the class representative ‘must be a part of the class and possess the same interest and suffer the same injury as the class members.’” Id. 

Here, Ford argued that Smith was not a typical class member because he resided in Missouri, only two phone numbers that received ringless voicemails without prior consent had (314) area code numbers, and the name associated with Smith’s phone number was not Smith’s. Smith, 2021 WL 3626402, at *5. Additionally, Ford argued that its potential defenses against a claim brought by Smith “are substantively different from its defenses against claims brought by Texas plaintiffs, thereby undermining the ‘typicality’ of Smith’s claim.” Id. However, the Missouri Court of Appeals disagreed with Ford and found that these factual contentions were not relevant to Rule 52.08(a)’s typicality requirement: “Reviewing the circuit court's decision for an abuse of discretion, we fail to see how Smith's Missouri residency or (314) area code impact his interest and injury relevant to the putative class… We reject Ford’s argument without considering the merits of Ford’s alleged defenses against Smith as we are guided by the well-established principle that ‘a unique-defense contention has nothing to do with the typicality standard”. Id. Accordingly, the Missouri Court of Appeals agreed with the Circuit Court’s analysis finding that Smith was a typical member of the class and that the class met the typicality requirements of Rule 52.08(a)(3).  

As for Ford’s second contention on appeal, the Missouri Court of Appeals disagreed with Ford and found that the Circuit Court “logically and properly found that the proposed class met the common-question-predominance requirement of Rule 52.08(b)(3).” Smith, 2021 WL 3626402, at *6. “The common-question-predominance requirement ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Id. “’[T]he fundamental question is whether the group aspiring to class status is seeking to remedy a common legal grievance[,]’ and the answer ‘is based on the nature of the evidence that will suffice to resolve the legal question.’” Id. 

To determine whether a question is common or individual in making a predominance determination for class certification purposes, a court must examine the nature of the evidence that will suffice to resolve the question, and if, in order to make a prima facie showing on a question, the members of a proposed class will need to present evidence varying among members, that the question is individual; however, if the same evidence is sufficient for each member's prima facie showing, then such a question is common.  Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368, 382 (Mo. Ct. App. 2005).

The Missouri Court of Appeals agreed with the Circuit Court’s analysis that the proposed class met the common-question-predominance requirement because “because every member of the class, consisting of the owners of the 3,769 phone numbers on the Manifest, has the same TCPA claim. Specifically, every class member alleges that Ford undertook to cause ringless voicemails to be delivered to their phone numbers during the relevant timeframe without their prior express written consent.” Smith, 2021 WL 3626402, at *7. The Missouri Court of Appeals further found that “the evidence of cellphone ownership, lack of consent, and receipt of the ringless voicemails during the relevant timeframe presents an overriding and compelling common question of recovery under the TCPA, which predominates over individual issues, such as where the cellphone owner resides or under what name the phone number is listed on the Manifest.” Smith, 2021 WL 3626402, at *6.  

The Missouri Court of Appeals did address Ford’s argument that some class members, including Smith, may not be the name or owner associated with a phone line that received a ringless voicemail, that Ford may have different defenses for each separate class member dependent upon the individuals associated with the phone numbers, and therefore a class action is not efficient, economical, or appropriate. The Missouri Court of Appeals was not persuaded by Ford’s arguments and noted that the “issues identified by Ford that may later prove some variance between the individuals… [which] may be relevant to the ability of some individuals to recover but does not so undermine the predominant common question of this litigation so as to preclude class certification.”  Smith, 2021 WL 3626402, at *7.

Attorneys and litigants should make note of the Missouri Court of Appeal’s analysis of Rule 52.08(b)(3). Although factual contentions and questions of law of each class member may differ, the key component is whether these issues predominate over any questions affecting only individual members. Ultimately, if factual contentions and questions of law affecting only individual members predominate over common issues, the class may be decertified before a decision on the merits as set forth in Mo. Sup. Ct. R. 52.08. 

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October 2021 e-Update