TCPAWorld followers have heard me crow a time or two about my big win in Tillman in which my client defeated certification in a TCPA wrong number code class case down in the Middle District of Florida. While defeating a wrong number TCPA code class action is already a worthy enough accomplishment, what I was most proud of was that the Court accepted our reasoning why such classes are never certifiable—not just in that case but in any case.
Despite my shameless references to Tillman, few Defendants have leveraged the case particularly well—until now. In Sliwa v. Bright House Networks, Case No. 2:16-cv-235, 2019 WL 4744938 (M.D. Fl. Sept. 27, 2019) the Defendant earned a critical ruling defeating certification in a TCPA debt collection class action and on grounds that should prove nearly universally helpful to outbound callers of all shapes and sizes. This is a real important win folks—on par with Tillman itself—and should be carefully studied by class litigators.
In the first place, the Defendant does a fine job of challenging the Plaintiff’s shape-shifting efforts with the class definition. While the Court ultimately concludes that the various amendments were too minor to merit rebuke, the tactic of laying out the shifting efforts helps to focus the Court on the flaws in each successive iteration of the class definition and emphasizes the weakness of the certification effort overall. The Defendant also properly—and I have to applaud this—challenges the language within the definition as vague. Specifically, the phrase “to whose cellular numbers” could be interpreted to mean that subscribers or users of the phone were class members. A valid objection lead the court to narrow the scope of the class by re-defining it to focus solely on subscribers. Excellent.
Next the Court analyzes ascertainability—a doctrine still alive and well in the Eleventh Circuit. And here we dive into the merits of the case. The Defendant used a vendor to place calls. The vendor used “disposition codes”—codes entered in a system by an agent or by the system itself documenting the outcome of a call—including a code for “Bad Phone” and a “result code”-typically a broader category-level version of a disposition code entered by a live agent— included “Incorrect Number-Live Answer.” The Plaintiff’s theory was that where a call was placed to a number after these codes were affixed to an account a class of TCPA violations might be identified.
But not so fast. Although the Plaintiff indeed identified over 9,000 such post-code attempts—through the work of commonly-used data “expert” Robert Biggerstaff— the Court held the expert report was insufficient to identify individuals who have valid TCPA claims, and for a very important reason:
Because the BP Code assigned to a phone number does not in and of itself mean or establish that Defendants dialed a wrong number, determining whether Defendants called a particular phone number after they “had already documented the number as a wrong number in their records” would require individualized inquiries as to why each phone number was assigned a BP Code.
Get it? Just because a code is present in the record does not mean that the underlying occurrence tracking that code actually happened or happened in any dispositive way. So the mere presence of the code does not comport with TCPA liability. That is a huge and critical ruling for folks in any industry who rely on data to track outcome of calls—just because a disposition is noted in a system does not mean it is accurate or that liability under the TCPA will ever necessarily follow, even if the data is accurate.
And for those of you in the debt collection space, here’s something to keep you coming back to TCPAWorld.com:
when presented with similar evidence regarding “wrong number” call log designations, this Court recognized that “in the debt collection industry ‘wrong number’ oftentimes does not mean non-consent because many customers tell agents they have reached the wrong number, though the correct number was called, as a way to avoid further debt collection.” Tillman v. Ally Fin. Inc., No. 2:16-CV-313-FTM-99CM, 2017 WL 7194275, at *7 (M.D. Fla. Sept. 29, 2017).
So there you go. Data lies. People lie. You just can’t certify these cases as a result.
There are other interesting pieces of this case, but the results flow more or less directly from the analysis above. Specifically, the Court finds a complete absence of predominance since the circumstances surrounding every individual call would need to be inquired into since the Defendant’s policies barred calls to wrong numbers and, hence, any call to a number identified by the class expert would likely have been justified by a re-consent or other post-code activity.
The adequacy analysis is also interesting. In Silwa the class counsel used an engagement letter that authorized counsel to charge the class representative fees and costs if the class representative accepted a settlement demand against their advice—we’ve seen that before—which is not permitted under the relevant Florida bar rules. The Court, however, found that it was for the state bar to enforce its ethics rules and that issue would not be held against class counsel for purposes of assessing adequacy to represent the class. (The court did, however, take a hard look at allegations counsel did not convey settlement demands to the Plaintiff before turning them down.)