The relatively light burden of proving numerosity under Rule 23(a) cannot be satisfied with speculative testimony, even if an expert does the speculating, says the Southern District of Florida.
In a putative class action brought for violations of the Telephone Consumer Protection Act, plaintiff sought damages for receiving unwanted advertisements via text message by the defendant’s alert service. Plaintiff moved to certify a class of Florida telephone subscribers who attempted to unsubscribe from the alert service via a “Stop All” reply text but continued to receive advertisements. To prove numerosity, plaintiff’s only evidence was the declaration of a communications expert who had reviewed data on the number of subscribers who sent “Stop All” texts and opined that all 1,026 comprised the class.
The Court — having previously excluded portions of the expert’s testimony dealing with class size — denied Plaintiff’s motion to certify for lack of evidence on numerosity. The Court explained, however, that even if it had considered the expert’s testimony, it would have reached the same result. No evidence existed that the 1,026 subscribers who attempted to unsubscribe continued to receive unwanted messages. Moreover, the expert’s assumption that all subscribers who sent more than one “Stop All” reply text did so because they continued to receive unwanted advertisements was unsupported speculation. The expert himself had acknowledged that many reasons existed for attempting to unsubscribe, yet the expert failed to quantify the number of subscribers who did so because they received additional advertisements after sending the first “Stop All” message. Without more, the expert’s testimony was too speculative to be of any use regarding the size of the proposed class.