Generally speaking a guy who sends tens of thousands of prerecorded calls to cell phones without express consent is in a heap of TCPA trouble.
But if you’re former child star turned presidential-candidate Brock Pierce, maybe the rules don’t apply to you the way they do everyone else.
Brock was sued in a TCPA class action in Puerto Rico for some reason. The claim was that he sent tens of thousands of prerecorded calls without consent. This seemed like a pretty straight forward TCPA claim– but when it came time to certify the case the Plaintiff just couldn’t get it done. And it is one of the oddest certification denials I have seen to date.
In Rowan v. Pierce, 2024 WL 1693859 (D. Puerto Rico April 19, 2024) the court denied certification determining that numerosity, adequacy and ascertainability had not been shown.
On numerosity, the Plaintiff’s expert–a good guy named Aaron Wolfson–had determined 157,598 unique numbers were in the class. But then another good guy– David Kalat–determined there were some errors in Wolfson’s work. (real battle of the experts.)
Plaintiff came back and told the court that accounting for the errors in Wolfson’s report the actual number was of class members was 153,159–well above the 40 needed to establish numerosity. But the court was not convinced–there was no evidence presented confirming the new count.
Essentially Plaintiff had conceded Wolfson’s report was wrong without obtaining an amended report or a provable means of demonstrating the right number. So even though the “true” class figure was likely only a couple thousands less than Wolfson’s predicted figure, the court still denied certification for lack of evidence of the actual count.
Pretty cool.
It gets better.
The calls at issue in the case were between 32 and 43 seconds long. But many of the call time durations in the records were over 58 seconds long–too long, per the experts, to have been sent by the campaign at issue. Again the Plaintiff failed to account for the shifting data sets here and could not weed out which calls were, and were not, sent by the Defendant based on the duration.
This last point is interesting to me since there should have been transactional logs of the outbound attempts by the Defendant instead of just records of calls received by subscribers on the list, but apparently only the latter data set was in the possession of Plaintiff at the time of certification. Very odd.
Regardless, the court also denied certification on ascertainability grounds on the same analysis–since Plaintiff couldnt identify where the class count had come from Plaintiff certainly cannot identify class members for the same reason.
Last Plaintiff as deemed inadequate to represent the class because Plaintiff only obtained records of AT&T customers, and he is a Verizon customer. His effort to represent a nationwide class fell short because he only had one carrier’s records. And he could not represent a class of AT&T subscribers–because he wasn’t one.
Overall this Rowan case offers a fascinating look at how some courts will view data sets through a hyper-technical lens. While that is fantastic for a defendant when it happens– folks should not get too excited about this ruling. I think 9 out of 10 judges would have rejected the numerosity arguments here recognizing that the count of class members was plainly above 40.
The bigger issue in my mind was the reliance by Plaintiff on carrier records to prove numerosity to begin with. Big mistake. As I have tried to explain repeatedly, DATA IS NOT NEEDED TO CERTIFY A CASE. It only gets you in trouble as Plaintiff.
Instead you need information about what data exists and the story it tells. Certify the case. Then obtain the data for the actual certified class.
Here the Plaintiff allowed discovery to close before the class certification deadline–this is an obvious mistake for both plaintiffs and defendants, depending on the circumstances and it should simply never happen–and could not obtain data sets for the class that would have otherwise been perfectly certifiable.
Literally the entire certification effort unraveled because Plaintiff relied on incomplete data sets when he would have been better served relying on no data sets at all.
But hey, what do I know?
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Eric, first, thank you for continuing to advance great analysis and to being a good steward of the legal profession. David Kalat, who I consider a friend, is a good guy indeed. Mr. Kalat did a thorough job of preparing a rebuttal report, grounded squarely within the facts in evidence – the hand that he was dealt was that which he (and I) had to work with. While there are some points of disagreement, such as it being un-necessity for the length of calls to be aligned precisely to those of the recording itself (e.g. some answering machines have longer preambles, and other times some people just simply hang up on a prerecorded message right away), I nonetheless respect the trier of fact.
I appreciate your analysis, Eric, thank you again for covering this and other important matters.