The federal judge in the Southern District of California refused to certify the following putative TCPA wrong number, non-customer class because “a complete analysis of the customer status issue would require an inquiry into each call recipient’s individual circumstances,” Davis v. AT&T Corp., No. 3:15-cv-02342-DMS-DHB, 2017 U.S. Dist. LEXIS 46611 at *16 (S.D. Cal. Mar. 28, 2017):
All persons within the United States who had or have a number assigned to a cellular telephone service and received at least two telephone calls from Defendant or its agents through the use of any ATDS and/or with an artificial or pre-recorded voice, without their prior express consent, within the four years prior to the filing of the Complaint in this action who were not customers of Defendant at the time of the calls, where Defendant’s records indicate that prior to the second and/or any subsequent call, the call recipient indicated that Defendant had reached a “wrong number” or similar notation in Defendant’s customer account records.
The plaintiff failed to explain a method for determining, “via class-wide proof,” inquiries into the circumstances of each call recipient. A “wrong number” notation in the defendant’s records alone would not suffice. For example, was the recipient a past customer, or did another person with adequate authority over the called number provide consent?
The district court joined the holdings in True Health Chiropractic, Inc. v. McKesson Corp., No. 4:13-cv-02219-HSG, 2016 U.S. Dist. LEXIS 111657 (N.D. Cal. Aug. 22, 2016), and Shelby v. LVNV Funding, LLC, No. 3:13-cv-01383-BAS-BLM, 2016 U.S. Dist. LEXIS 83940 (S.D. Cal. June 22, 2016), which it cited, as well as similar holdings from other circuits that struggled to figure out how to determine class-wide consent. See, e.g., Stein v. Monterey Fin. Servs. Inc., No. 2:13-cv-01336, 2017 WL 412874, 2017 U.S. Dist. LEXIS 12707 (N.D. Ala. Jan. 31, 2017); Ung v. Universal Acceptance Corp., No. 15-127, 2017 WL 354238, 2017 U.S. Dist. LEXIS 10078 (D. Minn. Jan. 24, 2017). Well before the class certification stage in a putative class action, TCPA defendants should analyze the viability of an early motion to strike such proposed classes based on the need for mini-trials to determine the status of call recipients, and whether facts predominate under Rule 23(b)(3) of the Federal Rules of Civil Procedure.