In what could be seen as an early holiday present to those institutions often entangled in Telephone Consumer Protection Act litigation, a district court in the Eleventh Circuit not only denied certification in a TCPA wrong number class action, but also struck down common methods used by plaintiffs to ascertain class members. Going further, the Court found that wrong number class actions are fatally plagued by individualized inquiries of consent where a defendant intends to call actual consenting customers, and topped everything off with due process considerations.
In Wilson v. Badcock Home Furniture, the Court began its analysis by finding fundamental problems with ascertainability, noting the difficulties in identifying individuals receiving a “wrong number” call. Typically a defendant’s records will only show that a wrong number was dialed but nothing further regarding the individual that received the call. Plaintiffs therefore generally propose using a reverse-number lookup and subpoenas to cell phone carriers for copies of call records. This method, however, will not identify call recipients who are regular users under a family cell phone plan, and this is where the Court ruled the reverse-lookup method “truly fell apart” (noting that the class plaintiff would not have even been identified using this method) and found that there was “no way to definitively determine who actually answered the call from the defendant … .”
The Wilson defendant also identified multiple instances where more than one customer provided the same phone number. As is commonly seen in TCPA litigation, the plaintiff proposed the “ask the subscriber” approach, but the Court rejected this method for three reasons. First, the method “ignores the very purpose of ascertainment and will, in any event, require an individualized inquiry.” Second, the “ask the subscriber” method could violate a defendant’s due process protections as penalties of up to $1,500 per call could incentivize individuals to improperly enter the class. Finally, the Court ruled that this method would lead to nothing but inadmissible hearsay, finding that “a call recipient’s statement of ‘wrong number,’ as well as the simple act of Defendant listing a number as ‘wrong number’ may not be admissible as a matter of federal evidence as proof of the matter asserted, even if the number is labeled as ‘wrong’ in Defendant’s business records. The unknown person answering on the phone was under no business duty to make that declaration, which is likely hearsay to prove the number was in fact wrong.”
Aside from the obvious ascertainability issues, the Court found predominating individualized issues of consent, noting that the defendant only calls numbers in its records thought to have belonged to actual consenting customers which raises possible defenses against many class members. Again, the Court addressed due process concerns, finding that with the TCPA’s high statutory penalties, due process allows the defendant to inquire “whether the alleged wrong number belonged to a customer by consulting each individual file” and not leave the defendant at the mercy of the prospective class members.
The Wilson decision is significant and sets out a roadmap to defeat common methods used for class certification in wrong number TCPA cases. Importantly, the Court laid out arguments for defeating plaintiffs’ unreliable methods of identifying class members and stressed the importance of individualized inquiries of consent when a defendant simply attempts to call consenting phone numbers.