An appeals court has reversed a trial judge's order certifying a class action against DirecTV over allegations that it continued to call people in violation of the Telephone Consumer Protection Act. 

While the named plaintiff and other potential class members who had asked DirecTV to stop calling them might have standing to sue, the appellate panel ruled, the class certified by Judge Mark Cohen of the U.S. District Court for the Northern District of Georgia did not meet that standard because it also included individuals who had received the marketing calls but had not asked them to stop. 

The U.S. Court of Appeals for the Eleventh Circuit decision penned Thursday by Judge Stanley Marcus, with the concurrence of Judge Susan Black and appointed Judge Jane Restani of the U.S. Court of International Trade, "does not mean that the case is nonjusticiable," said the opinion.

"But the fact that many, perhaps most, members of the class may lack standing is extremely important to the class certification decisions," it said.

The plaintiff had argued the putative class at issue numbered at least 16,870 people who received the calls, but the opinion said the number of those who actually asked to be placed on DirecTV's internal do-not-call list "might be quite small."

The case began when Sebastian Cordoba sued DirecTV over calls placed by its marketing contractor, Telecel Marketing Solutions, in 2015.

According to his complaint, Cordoba got 18 calls from the marketer "even though he repeatedly demanded that he not be contacted," in violation of the TCPA's provision that telemarketers maintain an internal "do-not-call" list for individuals who have asked not to receive calls.

Cordoba sought certification for two classes: The first—which is the subject of the appeal—was for "all individuals who received more than one telemarketing call from Telecel on behalf of DirecTV on or after Oct. 27, 2011."

The second class, which is not the subject of the appeal, includes "all individuals whose telephone numbers were on the National Do Not Call Registry" but nonetheless received the marketing calls—or 926 people, the opinion said. 

Cohen certified both classes in 2017, and DirecTV sought an interlocutory appeal challenging the first one.

The question of standing was the only issue addressed by the appellate opinion. 

DirecTV first argued that receiving an unwanted phone call did not constitute an "injury in fact," but the appellate panel found prior 11th Circuit decisions "strongly suggest that the receipt of more than one unwanted phone call is enough to establish injury in fact."

Unlike a text message, "a phone call intrudes upon the seclusion of the home, fully occupies the recipient's device for a period of time, and demands the recipient's immediate attention," it said.

"While those injuries might not be significant in the grand scheme of things, they are sufficiently concrete and particularized" to create standing to claim an injury.

But DirecTV's argument that certifying class members who did not ask Telecal to stop calling "is more persuasive," Marcus wrote.

Federal rules regarding standing require "traceability," a showing of a "causal connection between the injury and the conduct complained of," Marcus wrote.

Cordoba meets that standard because he repeatedly asked that the calls to stop, as do those in the National Do Not Call Registry, he said.

"But if an individual not on the National Do Not Call Registry was called by Telecel and never asked Telecel not to call them again, it doesn't make any difference that Telecel hadn't maintained an internal do-not-call list," Marcus said. "Telecel could and would have continued to call them even if it had meticulously followed the TCPA and [Federal Communications Commission] regulations."

That issue is central to the ongoing litigation, he said, as are two questions: How many calls members asked Telecel not to call any more, and how will those requests be proved?

"If most call members made these requests, or if there is a plausible straightforward method to sort them out at the back end of the case, then the class might appropriately proceed as it is currently defined," the opinion said.

"If, however, few made these requests, or if it will be extraordinarily difficult to identify those who did, then the class would be overbroad and the these individualized determinations might overwhelm issues common to the class."

"Our decision does not mean that a substantially similar class cannot be drawn or certified, or that no class action based on a failure to maintain an internal do-not-call list could succeed, or even that the class as certified by the district court was necessarily too broad," the ruling said.

But the certification ruling gives no indication of how many class members would have been on any internal do-not-call list, if one existed, "and thus does not tell us how many members of the putative class have standing to sue."

"On remand, the district court will be in a better position to answer these questions and, ultimately, to address whether common issues predominate" under federal class action rules, it said. 

The complaint was filed by Stephen Yaklin and Matthew Wilkins of Marietta's King, Yaklin & Wilkins and G. Taylor Wilson, who was then with the firm but is now with L. Lin Wood P.C. 

Yaklin referred queries to Wilson and Wood, who was co-counsel on the appeal .They did not respond to requests for comment Monday afternoon. 

DirecTV's counsel includes Ava Conger and John Jett of Kilpatrick Townsend & Stockton in Atlanta; Douglas Cuthbertson, Daniel Hutchinson and Jonathan Selbin of Lieff, Cabrasher, Heiman & Bernstein; and John Muench and Kyle Steinmetz of Mayer Brown, 

In response to queries, a spokesman for DirecTV's parent company, AT&T, said it was pleased with the ruling.