Chinitz v. Intero Real Estate Services

Background

On July 22, 2020, the court granted Ronald Chinitz’s motion for class certification. It certified two classes concerning alleged violations of the Telephone Consumer Protection Act (TCPA):

- A National Do Not Call class seeking injunctive relief under Federal Rule of Civil Procedure 23(b)(2) and damages under Rule 23(b)(3). - An Internal Do Not Call class seeking injunctive relief under Rule 23(b)(2).

Intero Real Estate Services moved for reconsideration. The court granted Intero permission to file that motion, and Chinitz opposed it. The court decided the motion without oral argument.

Legal standard

The court described reconsideration as an extraordinary remedy that should be used sparingly. Under the applicable local rule, a party seeking reconsideration of an interlocutory order had to show reasonable diligence and a manifest failure by the court to consider material facts or dispositive legal arguments that had previously been presented. The party could not simply repeat arguments already made in connection with the original order.

Intero’s arguments and the court’s rulings

Numerosity. Intero argued that the evidence showed only six telephone numbers had been identified as residential lines, rather than at least 68,918, and that individual review was needed to determine whether other numbers were used for residential or business purposes. The court said it had considered this argument in the original order. It explained that it accepted the process used by Chinitz’s expert and drew reasonable inferences, including that residential real estate is sold by individuals rather than businesses. The court concluded that direct, conclusive evidence was not required where expert evidence supported reasonable inferences about the number of class members.

Expert report. Intero argued that Chinitz’s expert had violated disclosure rules by not producing the data used to prepare the report, requiring exclusion of the report. The court rejected that argument, stating that it had previously found no violation of the disclosure rules because the data used by the expert had been produced. The court also stated that there had been insufficient evidence of harm before the original decision and that it could not properly consider new allegations of harm in the reconsideration motion.

Predominance. Intero argued that the court had failed to conduct the required rigorous analysis of whether common questions predominated over individual issues. The court disagreed. It stated that it had considered Intero’s expert reports, declarations, and arguments about whether the data identified residential subscribers and whether individual inquiries would be necessary. The court also considered Chinitz’s evidence that common records could show that Intero’s sales associates made TCPA-violating calls. After reviewing the evidence again, the court continued to find that common questions predominated. It also reiterated that the National Do Not Call class was not limited to residential telephone subscribers and that class certification did not require an administratively feasible method for identifying class members.

Apparent agency and vicarious liability. Intero challenged the court’s conclusion that whether Intero could be held responsible for calls allegedly made by 49 independent-contractor sales associates could be decided on a class-wide basis. Intero argued that there was no evidence that Intero had made a statement or taken an action leading people who received the calls to believe that the sales associates had authority to make them. The court responded that, at the class-certification stage, the relevant question was how a reasonable person would perceive the calls, not how each individual class member actually perceived them. The court also said Intero was improperly arguing the merits of the claim rather than addressing class-certification requirements.

Internal Do Not Call class. Intero argued that the court had overlooked evidence that Intero maintained an internal Do Not Call list, that sales associates might maintain their own lists, and that there was no evidence that people on those lists were called again within 12 months. Intero also relied on a decision from the Eleventh Circuit. The court stated that the Eleventh Circuit decision was not binding on it and that failure to consider nonbinding authority did not show a manifest failure requiring reconsideration. It further concluded that Intero’s arguments were directed toward a damages class under Rule 23(b)(3), while the Internal Do Not Call class sought uniform injunctive relief under Rule 23(b)(2).

Disposition

After reviewing Intero’s arguments, the evidence, and the original class-certification order, Judge Beth Labson Freeman denied Intero’s motion for reconsideration. The opinion does not state that the court changed or withdrew either certified class.