Denying Class Certification, Court Rejects Use of Affidavits

TCPA Connect

Siding with the defendant, a Massachusetts federal court judge denied certification of two classes in a putative Telephone Consumer Protection Act (TCPA) class action against a medical device manufacturer.

From 2014 through 2018, Boston Scientific partnered with a number of pain management clinics to host seminars intended to educate clinic patients about treatment options for chronic pain management. The company sometimes made invitation calls for the seminars on behalf of its partner clinics.

Boston Scientific provided a standard script for the invitation calls, and sometimes a company representative recorded the message. Boston Scientific made between one and three calls to each invitee; if an individual answered the first call, he or she did not receive any additional calls.

Steven Sandoe allegedly received two prerecorded calls from Boston Scientific in June 2018 and July 2018. The calls were intended for a patient of Spine Works Institute, a Boston Scientific partner, but the telephone number (which was listed on the National Do Not Call (DNC) Registry) for the patient had been reassigned to Sandoe.

Sandoe filed a putative class action in Massachusetts federal court. He then moved to certify two classes of plaintiffs: one that received the prerecorded calls where the individual was not listed in the defendant’s records as the intended recipient of the call and a second group of call recipients whose phone numbers were listed on the DNC Registry and the individual was not listed as the intended recipient.

To support his class identification methodology, Sandoe proffered an expert, who told the court she provided a list of the names of Boston Scientific’s identified call recipients to TransUnion, which linked the information to names, phone numbers and addresses via a reverse-append process.

The expert then compared the names and addresses with Boston Scientific’s intended call recipients to identify “wrong numbers.” The expert applied what she termed a six-month “fuzzy” grace period, presuming the individual called was the user of a number at the time of Boston Scientific’s call if he or she was associated with that number within six months of the call.

She also analyzed whether the numbers were associated with landlines or cellphones, processed the “wrong number” results through another database to determine whether they were registered to any businesses, and compared the “wrong numbers” with the DNC Registry.

The plaintiff’s expert’s analysis resulted in the identification of 9,000 numbers, or 15 percent of a sample set, as “wrong numbers.”

Boston Scientific objected to the report, employing its own expert, who argued that the plaintiff’s methodology and analysis were “unreliable, unsupportable, flawed and inconsistent.”

U.S. District Judge Nathaniel M. Gorton agreed, finding that Sandoe failed to demonstrate that the members of the proposed classes were ascertainable and that common issues predominated, as required under Federal Rule of Civil Procedure 23(b)(3).

The court noted that the reverse-append process did not even identify Sandoe as a class member (the database did not associate him with the phone number until after Boston Scientific’s calls) and the use of the so-called fuzzy period was inconsistent and lacked any support from the plaintiff.

Sandoe contended that any discrepancies between identified wrong numbers and intended recipients could be resolved by a self-attestation process, with class members filing affidavits. But the court was not persuaded, noting that a class cannot be certified without providing the defendant an opportunity to litigate its defenses.

“Here, consent is a defense to the TCPA claim of each member of the putative class,” Judge Gorton wrote. “Defendant has a right to challenge, and has expressly stated its intention to do so, any submitted affidavits purporting to self-identify as class members on the ground of consent. As a result, the challenged affidavits would be inadmissible and each of the thousands of putative class members would be subject to cross-examination at trial.”

Although the court was “convinced” that Sandoe failed to establish that the proposed classes were ascertainable, it also determined that he failed to demonstrate that common issues predominated.

The plaintiff argued that the reverse-append process combined with analysis of phone records would allow the parties to determine which numbers were “wrong numbers” and therefore associated with nonconsenting recipients.

Even putting aside that the inconsistencies identified by the defendant cast doubt on the plaintiff’s ability to reliably identify wrong numbers, Boston Scientific still had a potential consent defense against each class member, the court said.

“For example, defendant’s expert has proffered that up to 75% of cellphone carrier plans are friends and family plans meaning that a single subscriber is associated with multiple phone numbers,” the court wrote. “The individual users of the associated numbers sometimes do and sometimes do not share a last name with the subscriber. As a result, defendant has a unique potential consent defense against every proposed class member, and, for the reasons discussed above, plaintiff cannot rely on affidavits to establish lack of consent.”

Accordingly, Judge Gorton denied the plaintiff’s motion for class certification.

To read the memorandum and order in Sandoe v. Boston Scientific Corporation, click here.

Why it matters: The court refused to allow the plaintiff to rely on affidavits to resolve questions about whether individuals should be included as class members, holding that the defendant must be provided an opportunity to litigate its defenses—which would result in mini-trials on each affidavit. Further, noting the defense expert’s estimate that 75 percent of cellphone plans are friends and family plans that include multiple individuals, the court said the plaintiff failed to demonstrate that common issues predominated.