United States District Court, W.D. Oklahoma
ROBERT BRAVER, for himself and all individuals similarly situated, Plaintiff,
NORTHSTAR ALARM SERVICES, LLC, et al., Defendants.
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
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.
Yodel's arguments are premised on Yodel's contention,
made throughout its moving papers,  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
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
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). 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.
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
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
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.
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
(10th 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 (10th 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.
Motion to Decertify
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.
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 ...