Ahead of the Class

This guest post was authored by our colleague Jennifer E. Canfield, an associate in Montgomery McCracken’s Litigation Department and a member of its Class Action Defense practice group. Her practice focuses on defense of consumer class actions, commercial litigation and appellate litigation. She can be reached at jcanfield@mmwr.com or 215.772.7319.

Generally speaking, ascertainability means the class must be readily identifiable based on objective criteria without individualized fact-finding or mini-trials. While that does not mean a plaintiff must identify every class member by name before class certification, it does mean a plaintiff must offer an administratively feasible method that will ultimately identify class members to a reasonable degree of accuracy. But how does that requirement play out in class actions brought under the Telephone Consumer Protection Act (“TCPA”) where plaintiffs typically offer to use reverse lookups of a list of telephone numbers? Is using reverse-lookups a reasonable method to ascertain class members in every case? That is a question on which the Seventh Circuit might soon weigh in.

In Balschmiter v. TD Auto Finance, LLC, after receiving numerous debt-collection calls intended for her boyfriend, the plaintiff filed a class action alleging an auto financing company violated the TCPA by calling non-customers. No. 13-CV-1186, ___F.R.D.___, 2014 WL 6611008, at *1-2 (E.D. Wis. Nov. 20, 2014). The plaintiff sought to represent a class of persons who received a call on or after October 21, 2009 “from or on behalf of [the defendant] to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice, who did not have a contractual relationship with [the defendant].” Id. at *1. The defendant argued the plaintiff gave prior express consent because she contacted the company on her boyfriend’s behalf, and its records reflected the plaintiff agreed it could contact her. The plaintiff contended she never agreed the company could contact her, and she changed her cell phone number due to the number of calls she received.

The district court denied class certification because the plaintiff failed to demonstrate “that the proposed class is adequately defined and clearly ascertainable” based on objective criteria—a requirement “inexorably tied with the plaintiff’s class definition.” Id. at *4-5, 15-16 (quotation marks and citation omitted). Under Seventh Circuit precedent, a called party under the TCPA is the person who subscribed to the called number at the time the call was made. Id. at *15. And determining who the class members were as individuals, not as numbers on a list, raised concerns because people who subscribed to the numbers years ago may not be identifiable now.

The plaintiff proposed using a reverse-lookup provider to determine who the class members were. Id. at *15-16. A reverse-lookup system starts with the phone number and works backward to figure out the name associated with that phone number. But the plaintiff’s expert agreed that there was “no reverse-lookup provider that can reliably provide subscriber information at a specified date in the past.” Id. at *15. He also conceded reverse-lookups were even more inaccurate in debt-servicing populations “because, presumably, those individuals often switch numbers to avoid debt-collectors.” And that created a problem for the plaintiff: determining, for calls made over a period of five years, who the “called party” was at the time of the call.

The court concluded the class was unascertainable, calling the “large window of time” the “death knell” to the plaintiff’s case because the court did not find a single decision “involving such a large window of time where ascertainability was met solely based on reverse-lookups.” Id. at *16. It said the case differed from Birchmeier v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2014 WL 3907048 (N.D. Ill. Aug. 11, 2014), which certified a class spanning only one year because the plaintiff there used the information from the reverse-lookup “in conjunction with obtaining contact information from the telephone carriers themselves.” Id.

The court also concluded plaintiff did not satisfy the predominance requirement. Id. at *19-20. The parties disputed whether a non-customer could consent to receive debt-collection calls regarding another person’s debt. Recognizing the lack of clear guidance from the FCC or the Seventh Circuit, the district court “decline[d] to find that a non-debtor could never consent to debt-collection calls regarding another individual’s debt.” Id. at *12. This conclusion meant the plaintiff could not “advance a viable theory employing generalized proof” that common issues predominated on the issue of prior express consent because her only theory was that no class member (non-customers of the defendant) could consent. Whether an individual consented and the scope of that consent required individual testimony. Id. at *19-20.

The plaintiff filed her petition for review under Rule 23(f), and the defendant filed its reply brief on December 30, 2014. A decision by the Seventh Circuit could broadly impact TCPA class actions nationwide—particularly in cases where phone records from the cell phone providers are unavailable. Additionally, if, as plaintiff proposed, non-customers can never consent to receive debt-collection calls about another person’s debt, we may see an increase in similar class action lawsuits because whether a person consented would not matter to satisfy predominance.

As a reminder, we will be hosting a webinar, “TCPA Update: The Year in Review and Trends for 2015,” on February 26. Click here for more information and to register.