Ascertainability and TCPA Class Actions
An essential requirement for certifying a class under Rule 23 is a means for presently ascertaining who is or is not a member of the proposed class. A trio of recent district court decisions has applied this ascertainability requirement to proposed TCPA class actions. The cases reach different conclusions as to whether a list of telephone numbers is a necessary or sufficient means of ascertaining class membership.
In Leyse v. Lifetime Entertainment, No. 13-cv-05794-AKH (S.D.N.Y. Sept. 22, 2015), plaintiff alleged that defendant placed 450,000 prerecorded calls in violation of the TCPA. Because neither defendant nor its vendor retained a list of numbers called, the court concluded that there was no objective means of presently identifying whether “any particular individual is a member of Leyse’s proposed class.” On that basis, the court concluded that the class was not ascertainable, and denied certification. Plaintiff has since moved for reconsideration.
The following day, in Sherman v. Yahoo! Inc., No. 13-cv-0041-GPC (S.D. Cal. Sept. 23, 2015), the court also denied certification and rejected the argument that class members could be ascertained through defendant’s own database of mobile numbers, and, if needed, a subpoena to a wireless carrier for customer identifying information associated with the numbers that had received the allegedly improper text messages. The court rejected plaintiff’s methodology on three grounds. First, because mobile numbers were often reassigned to new users, particularly on prepaid plans, the current database of mobile numbers could not be used to determine who had received the text during the proposed one-month class period. Second, because more than 40% of mobile numbers were on group plans, the account holder for a particular number may not be the person who received the alleged prohibited text. Third, discovery of wireless carrier records would infringe on the statutory protections otherwise provided to carrier customer records. See, e.g., Cal. Pub. Util. Code § 2891.
The Court also rejected plaintiffs’ effort to manufacture common classwide issues by narrowing the class to a one-month period. The court found that this proposal offended the purpose of Rule 23, as it would encourage a multiplicity of suits for every other month during which texts were sent, with the concomitant “possibility of inconsistent verdicts, which is precisely what Rule 23 was designed to avoid.”
The next day, certification was granted in Bee, Denning, Inc. v. Capital Alliance Grp., No. 13-cv-2654-BAS (S.D. Cal. Sept. 24, 2015). There, plaintiffs obtained via subpoenas a list of all numbers that had received pre-recorded calls from defendants. Defendants argued only that the list was overbroad, as it encompassed residential numbers, rather than just mobile numbers. While noting that defendant’s “argument has merit,” the court determined to narrow the class definition to persons receiving the calls on mobile numbers. The court did not explain how it would determine whether a number was mobile or residential, or how the person who received the pre-recorded call (as opposed to persons who held the account) could be identified from a mobile number alone.
The assumption underlying the certification decision in Bee, Denning seems to be that a list of numbers remains a static and sufficient means of identifying class members. Defendants should be prepared to challenge that assumption at class certification, and require that plaintiff meet the burden of showing that the proposed class can be ascertained.