As we have noted before, whether a claimant under the Telephone Consumer Protection Act (TCPA) gave “prior express consent” to receiving communications from the defendant is frequently a critical issue (and often the only issue standing between the defendant and massive class action liability). A recent decision from the Northern District of California in a “wrong number” class action, Revitch v. Citibank, N.A., is illustrative of the consent battleground.

The TCPA prohibits, inter alia, the making of unsolicited calls to cellular telephones using an automatic dialing system. A call is not unsolicited, however, where the call recipient gave the caller “prior express consent.” In Revitch, the plaintiff sued Citibank (an issuer and servicer of credit cards) after Citibank called him multiple times on his cell phone using an autodialer, despite the plaintiff not being a Citibank customer. Revitch sought certification of a class consisting of all persons in the U.S. who were called by Citibank using an autodialer where such persons were not listed in Citibank’s records as the intended recipients of the calls.

Recognizing that Citibank had prior express consent to call its customers about their accounts, Revitch pinned his certification theory on data from Citibank’s call system, indicating where call operators flagged particular phone numbers as “bad numbers” or “not valid” – thus indicating (according to Revitch) true “wrong numbers” as to which consent could not have been given or obtained. Revitch in his certification evidence also attempted to deal with the fact that a phone number can be flagged as “wrong” in Citibank’s system even when it is in fact the customer’s correct number (for example, an evasive customer might claim “wrong number” when being called about his delinquent account). To control for such false positives, Revitch’s expert used data from a “reverse lookup” service that, according to the expert, allowed for the identification of actual “wrong number” recipients.

The court nonetheless denied class certification, holding that individual issues of consent would predominate in any trial. First it noted evidence from Citibank that many of the “wrong numbers” proposed by Ravitch’s expert were in fact associated with Citibank customers that the bank was trying to reach (such as family members who also had Citibank accounts). Citibank also proffered expert evidence of its own, claiming that many of the “wrong number” call recipients were called in connection with a different account than the one in which a “wrong number” notation had been made in the call log system. A further problem with Revitch’s theory, according to the court, was that Citibank’s “wrong number” data existed only from November 2017 forward; proof of wrong number calls prior to that date would have to be taken from individual, account-level records. Relying on Citibank’s evidence, the court concluded that adjudicating class members’ claims would “devolve into tedious resolution of individualized issues based on individualized evidence.”

From the defense perspective, there are a couple of takeaways from Revitch:

First, the opinion notes a split in district court decisions on the issue of whether “wrong number” notations in a defendant’s call records will suffice to establish predominance and commonality. Some courts have said yes and certified classes; others (such as Revitch) have found the issue of consent to be too individualized for certification. To date no court of appeals has addressed the issue.

Second, Revitch illustrates the importance of the defendant’s evidence on the consent point (including, potentially, expert testimony), particularly when the plaintiff’s theory is premised on notations in the defendant’s call records. Several of the decisions certifying classes rejected as overly speculative the defendants’ arguments that “wrong number” notations didn’t necessarily mean an actual wrong number had been called. Revitch shows, unsurprisingly, that such arguments have much more force if they are proven to be true. Failing to develop the proof needed on this issue at the time certification is decided makes it easy for a court to simply conclude, “I can always revisit this certified class if the defendant’s theoretical objection is later shown to be correct.” In a world that can involve huge class-wide statutory damages, having to file a motion to decertify is not the place any defendant wants to find itself.