TCPA Class Certification Bid Fails for Individualized Issues, Rules New York Federal Court

TCPA Connect

The need for individualized inquiries defeated the plaintiffs’ motion for class certification in a “wrong number” case in New York federal court.

Leona Hunter and Anne Marie Villa, both New York residents, accused Time Warner Cable of making numerous calls to their cellphones that used an artificial or prerecorded voice. Both represented that they did not provide prior consent to be called by Time Warner and that the calls were “wrong number” calls—intended for individuals who had formerly been associated with the phone numbers before they were reassigned.

The calls were placed by Time Warner through a calling system to collect overdue account payments. The system dials a number that the customer has provided to Time Warner and has been maintained in the account records.

To help determine the boundaries of the potential class, Time Warner provided the plaintiffs’ expert with call records for a sample of 10,000 telephone numbers called by the system. The expert narrowed the calls to those using a prerecorded message and then evaluated them through a reverse-lookup database in LexisNexis to track the history of the phone numbers.

Comparing the reverse-lookup data to Time Warner’s call records, the expert concluded that approximately 66,000 mismatched calls were made to about 2,000 phone numbers (or roughly 20 percent of the sample). Extrapolated, that meant the defendant made almost 150 million calls to more than four million phone numbers, the plaintiffs alleged.

A second plaintiffs’ expert opined that the methodology was “reliable and accurate,” but two different experts for the defendant challenged both the methodology and the functionality of reverse-lookup databases generally.

Specifically, one of the defense experts took a sample of 75 individuals that the plaintiffs’ expert identified as having received wrong-number calls. His investigation determined that in 65 of those cases (or 86 percent), the phone number was associated with a Time Warner customer. Both he and the second defense expert opined that the reverse-lookup data used by the plaintiffs’ expert was unreliable at best.

Weighing the expert opinions, U.S. District Court Judge J. Paul Oetken of the Southern District of New York denied the plaintiffs’ motion for class certification, ruling that they failed to satisfy the predominance requirement under Federal Rule of Civil Procedure 23(b)(3) and expressing concern about the first plaintiffs’ expert’s procedure to identify class members.

“[A]s the expert reports and declarations submitted by Time Warner effectively establish, eligibility for class membership in this case cannot be reliabl[y] determined through the [plaintiffs’ expert’s] methodology,” the court wrote. “And plaintiffs have identified no other source of generalized proof that can accomplish the task.”

The plaintiffs’ process “puts a lot of stock in the ability of the reverse-lookup data to accurately identify the customer user of a phone number at a discrete point in time,” but LexisNexis representatives “disclaim the data’s capacity to fulfill this purpose,” the court pointed out. The database also lacked information for roughly 3 percent of the phone numbers, meaning an individualized analysis would be required for those numbers.

Even where the database did include a date by which a number was reassigned, it wasn’t always correct.

“Taking plaintiff Villa’s number as an example, at the time that she was receiving the alleged wrong-number calls from Time Warner, the LexisNexis data identifies the phone number as still being associated with the prior holder,” the court said. “In other words, plaintiffs’ methodology would not identify Villa as a member of the proposed class. And for any member of the class identified through the data, individualized inquiries would be required to definitively determine when reassignment occurred in relation to the alleged wrong-number calls received.”

There was no reason to think that the issues with the reverse-lookup database were specific to LexisNexis, the court added, citing several decisions by other courts rejecting proposals to use a similar tool in Telephone Consumer Protection Act class certification disputes.

The defendant also identified several errors in the methodology of the plaintiffs’ first expert, such as name-matching, where common names resulted in false mismatches.

“Time Warner has persuasively demonstrated that [the plaintiffs’ expert’s] methodology is incapable of accurately and reliably identifying a class of individuals that have received wrong-number calls,” the court said. “As a result, significant individualized inquiries would be required to determine whether the individuals [p]laintiffs deem to be wrong-number call recipients are indeed properly considered members of the proposed class.”

Further, the determination of class membership was “inextricably intertwined with the issue of consent,” Judge Oetken said. In some instances, where the plaintiffs’ methodology correctly identified that a Time Warner Cable account holder differed from the customer user of the phone number at issue, valid consent may be in place if the customer user had a relationship with the account holder.

Family members often provide consent to call one another’s phones, raising individualized issues of familial consent, the court said.

“Any common issues regarding how class members were called by the [Time Warner Cable system], or the shared source of records for those calls, are overshadowed by the individual inquiries that would be required to determine whether the alleged wrong-number recipients identified by plaintiffs were eligible for class membership or ineligible on grounds of consent,” the court concluded. “Accordingly, plaintiffs’ request to certify a class under Rule 23(b)(3) is denied.”

To read the opinion and order in Hunter v. Time Warner Cable, Inc., click here.

Why it matters: Individualized inquiries outweighed class issues, the court found, from problems with the reverse-lookup directory to matters of consent, with the plaintiffs’ proposed procedures unable to accurately and reliably identify a class of individuals that received wrong-number calls. This case also shows how having a reliable expert employing a strong methodology can be critical to successfully seeking certification.



pursuant to New York DR 2-101(f)

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