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Flynn v. DIRECTV, LLC

United States District Court, D. Connecticut

August 20, 2018

JEAN M. FLYNN, et al., Plaintiffs,
v.
DIRECTV, LLC, et al., Defendants.

          RULING DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

          JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE

         Plaintiffs 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).

         I have 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.

         Background

         Defendant 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.

         Plaintiffs 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.

         When 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 lease/rental agreement.

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 at 2-3.

         Neither 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.

         Plaintiffs 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).

         I 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.

         As to 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.

         The parties have conducted extensive discovery in the two years since I issued that ruling, and plaintiffs now move to certify a class under ...


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