A New York federal district court, after holding an evidentiary hearing, certified a class for alleged violations of the Telephone Consumer Protection Act (“TCPA”).  Plaintiff alleged that the defendant, a collection agency, repeatedly called his cell phone using an automated dialing system without his consent, including after being told that he was not the party defendant was trying to reach and after plaintiff had asked to be put on a “do not call” list.  Plaintiff claimed statutory damages of $500 per violation and up to $1,500 per willful violation for an alleged 146,879 unique cell phone numbers that defendant purportedly called during the class period.

In opposing certification, defendant argued that the lead plaintiff was not adequate to represent the class.  The court, while conceding that the lead plaintiff had “displayed poor memory regarding the posture and details” of the litigation at the time of the hearing, nevertheless concluded that he was adequate to represent the class, citing plaintiff’s extensive business background and experience with negotiations, and noting that there was no fundamental conflict between the interest of plaintiff and those of the class.

Defendant also argued that, while it did not obtain consent directly from class members, consent could be implied with respect to some of the members because evidence existed that some of the members gave their cell phone numbers to the underlying creditor.  Based on this, defendant maintained that commonality, typicality, predominance and ascertainability were lacking.  The court rejected this argument, finding that because defendant itself had “poor or nonexistent records” of which class members gave their consent to the creditor, defendant was in effect “asking the Court to reward its imperfect record-keeping practices by precluding class certification.”  The court further concluded that under the TCPA, implied consent was not sufficient; consent must be express.  In so holding, the court rejected a prior ruling of the Federal Communications Commission (“FCC”) under which implied consent was deemed valid under the TCPA. 

Finally, the court rejected defendant’s argument of lack of standing by the lead plaintiff, ruling that under the TCPA, the “called party” is the subscriber to whom the cell number was assigned at the time of the call, not necessarily the person who answers the phone. 

Zyburo v. NCSPlus, Inc., No. 12-cv-6677 (S.D.N.Y. Sept. 15, 2014)