SDNY Joins “Chorus of Courts” Finding That Individual Issues of Consent Preclude Class Certification in “Wrong Number” Case

On August 14, 2019, the Southern District of New York became the latest court to deny class certification in a “wrong number” case, finding that any common issues regarding how class members were called are overshadowed by individual inquiries that would be required to determine whether the alleged wrong-number recipients consented to the calls directly or through an intermediary—such as a family member—who was authorized to use the phone.  See Hunter v. Time Warner Cable, 15-CV-6445 (JPO), 2019 U.S. Dist. LEXIS 137495 (S.D.N.Y. Aug. 14, 2019).

The facts of the case are like so many “wrong number” cases before it:  trying to contact customers at numbers provided by the customers, the defendant reached the plaintiffs instead because the customers’ cell phone numbers had been relinquished and reassigned to the plaintiffs, who did not consent to receive the calls.  To determine the contours of plaintiffs’ “wrong number” class, plaintiffs’ expert took the call records for a sample of the class and sent the phone numbers from that sample through a LexisNexis reverse look-up feature to determine the historic and customary users of the phone numbers.  He then compared the data from LexisNexis to the call records and identified where the data was “mismatched.”  He then extrapolated the percentage of “mismatched” records to the entire class, and determined that defendant had placed almost 150 million calls to over 4 million phone numbers.  Defendant submitted expert reports challenging such methodology.  Plaintiffs and defendant filed a total of six motions to strike.  The court denied plaintiffs’ motions on the merits and did not “definitively resolve” defendant’s motions because even considering plaintiffs’ expert reports, the court found that it would nonetheless deny class certification.    

As to class certification for a damages class under Rule 23(b)(3), the court first resolved the parties’ dispute concerning whether determining eligibility for class membership is considered under the rubric of predominance or ascertainability, finding that predominance is the correct inquiry because “where ‘potentially thousands of individualized and elaborate inquiries would be required to identify who is part of the class . . . “predominance “ is not satisfied.’”  As to predominance, the court rejected plainitffs’ position that membership could be established using the methodology outlined by plaintiffs’ expert.  First, the court noted that representatives from LexisNexis – the product used by plaintiffs’ expert – “disclaim the data’s capacity to fulfill” the purpose for which plaintiffs’ expert was using it – that is, to determine subscribers and customary users of a telephone number on a current or historical basis.  In addition to these “general” concerns with plaintiffs’ proposed methodology, defendant also identified specific problems with the data and the expert’s methodology.  The court found that there were similar “shortcomings” with other reverse-lookup databases and cited a number of cases where courts have rejected proposals to use such tools.  The court found that defendant “has persuasively demonstrated that [plaintiffs’ expert’s] methodology is incapable of accurately and reliably identifying a class of individuals that have received wrong-number calls.  As a result, significant individualized inquiries would be required to determine whether the individuals [p]laintiffs deem to be wrong-number call recipients are indeed properly considered members of the proposed class.” 

The court also rejected plaintiffs’ effort to correct the deficiencies in its expert methodology with class member affidavits.  The court found that because there was an incentive to claim class membership to benefit from high-value damage claims, strong evidence that the proposed class contained improper class members, and defendant’s intention to challenge the affidavits at trial, “the proposal to use such affidavits would not render the issue of eligibility for class membership capable of generalized proof at trial.”

Finally, the court found that determination of class membership is “inextricably intertwined” with the issue of consent.  Because the court rejected plaintiffs’ methodology in crafting a class definition that excluded individuals who did not have a valid TCPA claim, it found that whether or not a particular individual consented to receive a call from the defendant must be considered in determining whether the individual is a class member.  Further, the court noted that it is possible that valid consent was given even if the defendant’s accountholder differs from the customary user, particularly when the accountholder and customary user are family members.  The court held that it was in “good company” with other courts in finding that individual issues of consent precluded class certification. 

Finally, the court also rejected plaintiffs’ request to certify a an injunctive-relief class under Rule 23(b)(2), finding that plaintiffs lack standing to pursue a forward-looking injunction.

This decision is welcome news to those of us here at TCPAWorld who continue to fight the good fight against “wrong number” class actions.

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