United States District Court, D. Connecticut
JEAN M. FLYNN, et al., Plaintiffs,
DIRECTV, LLC, et al., Defendants.
RULING DENYING PLAINTIFFS' MOTION FOR CLASS
JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE
are landlords who claim that defendants installed satellite
television equipment on their property without their consent.
On behalf of themselves and thousands of allegedly similarly
situated landlords throughout Connecticut, they have sued
defendants for trespass and under the Connecticut Unfair
Trade Practices Act (CUTPA).
previously dismissed plaintiffs' class action allegations
as to their trespass claim. Plaintiffs now move for class
certification as to their CUTPA claim. I will deny the motion
for class certification on two grounds. First, plaintiffs
have not proposed a class for which all members have an
injury-in-fact that would allow them constitutional standing
to maintain a claim. Second, plaintiffs have failed to show
that common questions of law or fact predominate over
individual questions of law or fact.
DIRECTV furnishes satellite-based television programming by
means of signals that it broadcasts through the air to small
satellite receptor “dishes” at customers'
locations. When a customer in Connecticut signs up for
service from DIRECTV, a technician from defendant MasTec
North America, Inc. (MasTec) goes to the customer's
location to install the DIRECTV satellite dish. The
installation ordinarily entails the drilling of holes in the
exterior walls or roof of the building where a customer lives
in order to affix the satellite dish.
own a three-story multi-dwelling unit (MDU) building that
they lease to tenants in Waterbury, Connecticut. They have
filed this lawsuit on behalf of themselves and a putative
class of thousands of other landlords in Connecticut alleging
that defendants wrongfully install satellite dishes on their
property without obtaining their written consent. According
to plaintiffs, defendants have a business practice that is
designed to allow them to install DIRECTV dishes for tenant
customers without obtaining landlords' consent.
DIRECTV signs a tenant customer up to receive its services,
DIRECTV and MasTec have the customer sign a work order
agreement stating that the tenant has received the
landlord's permission or otherwise authorizes the
installation of the satellite dish on the property:
Land Lord Permission: I confirm that I have been granted
permission or authorize the DIRECTV Home Service Provider
[MasTec] to install a DIRECTV Satellite System at the above
mentioned address. I understand that a satellite dish may
need to be permanently fixed to the structure and
modifications, including the drilling of holes, may be
necessary. In no event shall either the DIRECTV Home Service
Provider or DIRECTV have any obligation to remove the system
or accept any liability whatsoever for violations of my
Doc. #97-10 at 3; Doc. #101-4 at 2. When the MasTec
technician arrives at the customer's location to do the
installation, the technician has the customer sign the work
order form on a hand-held electronic device stating that the
customer has permission from the landlord, and a confirmation
email with the above-quoted language is then sent to the
customer following the installation. Doc. #97-3 at 27; #97-10
DIRECTV nor MasTec directly contact the landlord to obtain
permission to install a DIRECTV satellite dish. Technicians
are told that “[y]ou do not need to speak with or
receive a signature from the landlord, ” and
“[t]he customer is responsible for getting this
permission.” Doc. #101-3 at 2.
filed this lawsuit alleging a trespass claim and a CUTPA
claim. Two years ago, I denied defendants' motion to
dismiss the CUTPA claim, rejecting defendants' argument
that the CUTPA claim could not be sustained in the absence of
a business relationship between plaintiffs and defendants.
See Flynn v. DIRECTV, LLC, 2016 WL 4467885, at *2-5
(D. Conn. 2016).
further granted in part and denied in part defendants'
motion to dismiss plaintiffs' class action allegations.
As to plaintiffs' trespass claim, I noted that any
trespass claim would be defeated by evidence of consent
(whether consent is viewed as an element of a trespass claim
or a defense) and that “[a]lthough some tenants might
well falsely certify that such consent has been granted (and
defendants may well count on some tenants doing so), many
tenants will doubtlessly seek and obtain the consent of their
landlords.” Id. at *6. Regardless whether a
tenant acted truthfully or not, “[b]ecause the issue of
consent will require an individual-by-individual
consideration of the interaction (if any) between tenant and
landlord, the issue of consent cannot be adjudicated on a
class-wide basis.” Ibid.
the CUTPA claim, I concluded that it would be premature at
the bare pleadings stage to strike the class action
allegations. I concluded that “the CUTPA claim differs
from the trespass claim in a key respect, ” in that
regardless of individual consent “CUTPA forbids
business practices that violate public policy” and that
the fact “[t]hat some landlords may have consented to
having the dishes affixed to their property does not make the
alleged practice as a whole any more scrupulous or proper,
given the likelihood that many landlords will not consent and
still be victim to defendants' trespass.”
Ibid. On the other hand, I voiced some doubt about
whether plaintiffs could ever define their class in a
cognizable and manageable way that would satisfy CUTPA's
individual “ascertainable loss” requirement, in
view that if some landlords in fact consented (even if not in
writing but by means of oral consent), then plaintiffs would
be unable to show on a class-wide basis that any such
consenting landlord class members suffered an ascertainable
loss as required for a CUTPA claim. Id. at *6-7.
Notwithstanding these doubts, I decided that
“plaintiffs should have the opportunity to refine their
proposed class definition to address the concerns raised
here.” Id. at *7.
parties have conducted extensive discovery in the two years
since I issued that ruling, and plaintiffs now move to
certify a class under ...