Braver v. Northstar Alarm Services, LLC

          ORDER

          STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.

         Defendant Yodel Technologies LLC moves the court to decertify the class or reconsider summary judgment. Doc. no. 170. Plaintiff Robert Braver has responded, objecting to the motion. Doc. no. 179. Yodel filed a reply brief. Doc. no. 186. The court begins with some general comments about Yodel's motion.

         Many of Yodel's arguments are premised on Yodel's contention, made throughout its moving papers, ^[1] that this court's orders effectively hold that all calls using any soundboard technology are categorically prohibited under 47 U.S.C. §227(b)(1)(B). Based on that premise, Yodel argues that absent decertification or reconsideration of the summary judgment order, the court's orders render §227(b)(1)(B) unconstitutional under the First Amendment.

         Yodel's premise is demonstrably incorrect. As explained in more detail later in this order, the court's orders do not hold, effectively or otherwise, that all uses of soundboard technology are prohibited by 47 U.S.C. §227(b)(1)(B). The court's summary judgment order established the nature of Yodel's soundboard technology as used by Yodel to deliver the calls in question in this case. For example, the order found that Yodel's soundboard agents, located in a call center in India, followed a script which instructed them to press buttons in a certain order, thereby delivering prerecorded audio clips to the called party. The order further found there was no dispute that calls were made to residential phone lines, and that every initial call to class members began with the soundboard agent playing a pre-recorded message without the prior consent of the called parties.

         Based on these and other findings, it was clear that all class members received at least one soundboard call that violated the prohibition set forth in 47 U.S.C. §227(b)(1)(B).^[2] The court determined “There is no genuine issue with respect to the fact that Yodel initiated telephone calls to residential telephone lines using a prerecorded voice to deliver a message without the prior express consent of the called party.” Doc. no. 139, p. 13 of 31. The court ruled in favor of Braver and the class, and against Yodel, on count one. Accordingly, Yodel's arguments at this stage-which contend that the court ruled too broadly and should have taken into account what Yodel describes as the varying levels of “human-driven interactivity” demonstrated in some of the calls-are rejected. Yodel's motion to decertify will be denied.

         As for Yodel's alternative request that the court reconsider its order on summary judgment, the court will make a minor amendment to footnote 30, for the sake of accuracy. In all other respects, Yodel's request for reconsideration will be denied.

         Standards

         Rule 23(c)(1)(C) provides that an order which grants or denies class certification may be altered or amended before final judgment. Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982). This flexibility enhances the usefulness of the class-action device. Id. Actual, not presumed, conformance with the requirements of Rule 23(a) remains indispensable. Id. Accordingly, reasons given for altering certification orders, which are many and varied, have included, among other things, matters such as lack of numerosity, lack of commonality, or the inadequacy of the named plaintiff as class representative. Ponca Tribe of Indians of Okla. v. Cont'l Carbon Co., 2008 WL 11338389, *2 (W.D. Okla. 2008), citation omitted. Decertification may also be appropriate where new facts have been developed to justify such a redetermination. Id., citation omitted. This court presumes the burden is on Braver to show that the original certification remains appropriate under the requirements of Rule 23.^[3] If that is incorrect and the burden should be on Yodel to show that decertification is appropriate based on the record as it now stands, the result stated in this order (denial of decertification) would obviously be the same.

         Although the Federal Rules of Civil Procedure do not recognize a “motion to reconsider, ” the court has inherent authority to reconsider its interlocutory rulings and it should do so where error is apparent. Warren v. American Bankers Ins. of Florida, 507 F.3d 1239, 1243 (10^th Cir. 2007). That said, reconsideration is generally not appropriate when the motion advances arguments previously addressed by the court, or when the motion advances new arguments or supporting facts which were available and could have been presented at the time of the original motion. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10^th Cir. 2000). On the other hand, reconsideration may be warranted based on an intervening change in the controlling law, new evidence which was previously unavailable, or the need to correct clear error or prevent manifest injustice. Id.

         The Motion to Decertify

         Yodel argues that “Determinations crucial to the court's initial class decision order are now at odds with the record on summary judgment.” Doc. no. 170, p. 19 of 32 (“Argument” proposition 1.B). Yodel states that “As the record stands now, three principal inconsistencies in the Orders show the incongruity of the current class.” Id., p. 20 of 32.

         1. The first asserted inconsistency appears in footnote 30 of the summary judgment order. The footnote begins by quoting legislative history of the TCPA which expresses the congressional concern that:

These automated calls cannot interact with the customer except in preprogrammed ways….

Doc. no. 139, p. 11 of 13, n.30. The footnote references defendants' argument that “soundboard calls do not offend these ...