As we have previously mentioned, when a defendant is sued under the TCPA, one of the most important inflection points for that defendant is whether the plaintiff will attempt to certify a class action case against it.  If the plaintiff does attempt to certify a class, it is important for defense counsel to have a plan of attack to remove the class claims, just as defense counsel did in Wilson v. Badcock Home Furniture, where the plaintiff’s request for class certification was denied by a federal judge in Florida this week.

This decision highlights the importance of carefully examining the methodology proposed by plaintiffs to identify members of the proposed class.  As demonstrated by Wilson, the methodology may lack reliability such that, by working with a well-trained expert, it can be used to challenge the ascertainability of the class.

Setting the Scene:

The facts in Wilson are rather straightforward.  One of Badcock’s customers had provided personal information to Badcock, including the customer’s phone number, while applying for a line of credit to purchase furniture.  Three years later, the customer’s account had become delinquent, and Badcock started making automated calls to the customer-provided number to inquire about the debt.  In total, Badcock called the customer at least thirty times, each of which the customer claimed were in violation of the TCPA because the customer allegedly told Badcock’s representative to stop calling her and because the number belonged to the customer’s grandmother, not the customer. 

To make matters worse, though, the customer also sought to represent a class of up to 7,705 other individuals who she claimed had been called incorrectly by Badcock at a “wrong number.”  Thankfully, however, Badcock’s counsel had a plan to challenge this class certification early in the proceedings; a plan that ultimately worked.

Challenging the Proposed Class:

To certify any type of plaintiff class in federal court, the plaintiff must be able to show, inter alia, that the proposed class is “adequately defined” and that the possible members of the class are “clearly ascertainable.”  Additionally, the plaintiff’s proposed class must fall into one of several different “classifications,” which, based on the proposed classification chosen by the plaintiff here, would require the plaintiff to prove “that the questions of law or fact common to class members predominate over any questions affecting individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

The plaintiff-customer believed her proposed class could meet the above-named requirements because Badcock had used similar automated dialing technology to call other individuals at an incorrect or non-consenting cell phone number, and that it would be easy for the court to ascertain who the members of this proposed class were because: (1) Badcock had retained lists of those individuals it had called and whose recipients had identified the number as a “wrong number” and (2) this list could be cross-referenced with directories and carrier records to identify who the “wrong number” belonged to.  Badcock, however, was not convinced that federal class requirements were met and, more importantly, neither was the court.

While the court’s denial of the proposed class rested on other legal grounds, the Court spent considerable time discussing its concerns about whether members of the plaintiff’s proposed class were clearly ascertainable, meaning that they could be identified so that they could be notified of the existence of the class action, be provided an opportunity to opt-out of the litigation, and, to the extent a payment was ultimately awarded, receive notice of their compensation.  The court was skeptical of the methodology proposed by plaintiff’s expert witness, Anya Verkhovskaya, ultimately concluding that it appeared to suffer from several shortcomings.  Ms. Verkhovskaya’s proposed methodology included reviewing a list of “wrong numbers” – numbers that were actually mobile phone numbers, rather than residential numbers – dialed by Badcock using an autodialer, and then attempting to determine who was subscribed to each of the mobile numbers at the time the calls were made. 

The court noted that it was seriously disputed whether it is “even possible to identify the cell phone subscribers of the alleged wrong numbers” because there “is no public database of cell phone subscribers and private services are often inaccurate and incomplete.”  The court questioned Ms. Verkhovskaya’s reliance on a proprietary database owned by LexisNexis, which was described as a “black box.”  “Most glaringly,” said the court, was that “Plaintiff’s [expert’s] method would not even have discovered Plaintiff as a class member because she is not the subscriber of the number.”  In other words, the very methodology proposed by the plaintiff to accurately identify class members was not reliable enough to even identify her as a member of the class she proposed to represent. 

The court also rejected the suggestion that once potential members of the class were identified, they could be confirmed as class members through a self-attestation process of mailing notices and claim forms. The court found this process untenable because the “very notion” of a class action’s ascertainability is that it must be possible to determine the members of the class without individualized inquiry.  Moreover, the court concluded that, even if an affidavit process was permissible in cases where per-person damages are negligible, the per-message statutory damages provided by the TCPA makes the “incentive for individuals to improperly enter the class” and violate the defendant’s due process rights too great. 

More concerning for the court, though, was its belief that common questions of law and fact were not predominate among the class members because individualized issues of consent were far more prevailing.



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