Silver v. Pennsylvania Higher Education Assistance Agency

Background

Neil Silver alleged that Pennsylvania Higher Education Assistance Agency violated the Telephone Consumer Protection Act by using an automatic telephone dialing system or prerecorded voice to call his cellphone without the required consent. He asserted negligence and knowing or willful violation claims and sought statutory damages. The court had previously addressed a 2015 statutory amendment concerning calls made to collect federally backed debt; after an appeal, the Ninth Circuit held that the amendment did not apply retroactively to Silver’s claims.

Silver moved to certify a nationwide class of people who received PHEAA calls on cellular telephones between February 2010 and February 2014 after asking PHEAA to stop further telephone communications. PHEAA filed a motion to decertify the earlier proposed class. Because Silver’s proposed class differed from the class challenged in PHEAA’s motion, the court analyzed Silver’s proposed class and later terminated PHEAA’s motion as moot.

Class-certification requirements

Federal Rule of Civil Procedure 23 requires a proposed class to satisfy four basic requirements: enough members that joining them individually would be impractical, common legal or factual questions, claims typical of the class, and adequate representation. The proposed class must also satisfy at least one additional requirement under Rule 23(b).

The court concluded that Silver’s proposed class satisfied commonality because all class members allegedly shared at least one factual question: whether PHEAA used an automatic dialing or prerecorded-messaging system to call their cellphones. The court also found that Silver’s claims were typical because they arose from the same alleged conduct and injury. It found both Silver and his lawyers adequate to represent the proposed class.

Numerosity

The court nevertheless found that Silver failed to establish numerosity, meaning that the proposed class was sufficiently large for a class action. Although PHEAA had made millions of calls to millions of unique mobile numbers, Silver did not identify any other similarly situated person and relied on an assumption that at least 40 people must have been called without consent. The court held that this assumption was not evidence. It denied class certification on this ground alone.

Rule 23(b)(3): common questions and individual consent issues

The court separately held that certification under Rule 23(b)(3) was improper because individual questions about consent would predominate over common questions. Under the version of the Telephone Consumer Protection Act applicable to Silver’s claims, a plaintiff had to show that the defendant called a cellular number using an automatic dialing system without the recipient’s prior express consent. The court treated consent as an affirmative defense that PHEAA had the burden to prove.

PHEAA offered several evidence-supported ways that borrowers might have consented, including providing phone numbers in letters or emails, communicating with PHEAA by phone, agreeing that a loan servicer could call, and providing contact information in loan documents. The court held that Silver failed to show that these consent questions could be resolved with evidence common to the entire class. Instead, the court would need to examine individual communications, statements, conduct, and loan documents.

The court reached the same conclusion regarding revocation of consent. It explained that consent may be revoked through any reasonable method clearly expressing a desire not to receive further calls, and that whether revocation was effective depends on the totality of the facts and circumstances. Silver’s proposed class definition, which included people who asked PHEAA to stop calling, did not eliminate individual questions because people could later reestablish consent in different ways. The court therefore denied certification under Rule 23(b)(3) without deciding whether a class action would be the superior method of resolving the dispute.

Rule 23(b)(2): injunction and declaratory relief

The court also held that certification under Rule 23(b)(2) was improper. That provision is generally used when the primary relief sought is an injunction or declaration affecting the class as a whole. Silver primarily sought statutory damages, so the court concluded that monetary relief—not injunctive relief—was the main remedy requested.

The court also stated that the current version of the Telephone Consumer Protection Act exempts calls made solely to collect federally owed or federally guaranteed debt, and that an injunction requiring PHEAA to comply with the law would not independently support class certification. In addition, Silver acknowledged that PHEAA had adopted a new policy stopping automated calls after a broader range of requests from recipients. The court concluded that the requested injunction was moot as to PHEAA’s existing use of the challenged systems.

Disposition

Judge Phyllis J. Hamilton denied Silver’s motion for class certification and terminated PHEAA’s motion to decertify as moot.