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Second Circuit Affirms Denial of Certification Because Putative Class is Unascertainable, but Holds Receipt of Phone Calls Confers Standing

Last week, the Second Circuit, in Leyse v. Lifetime Entertainment Servs., LLC, affirmed the denial of class certification in a putative TCPA prerecorded message class action for lack of an ascertainable class. (We previously blogged about this district court decision.) Lifetime, concerned that viewership of its hit show “Project Runway” would suffer due to a channel change, hired a third-party vendor, OnCall Interactive, to contact New York City residents with a prerecorded message from the show’s host informing potential viewers of the channel change. Leyse v. Lifetime Entertainment Servs., LLC, No. 13-cv-5794, 2015 WL 5837897, at *1 (S.D.N.Y. Sept. 22, 2015). OnCall, in turn, purchased a list of phone numbers from an unknown third-party vendor; Lifetime never obtained that list. Id. at *2.

OnCall called the apartment Plaintiff was living in (although neither the lease nor telephone service was in his name). Plaintiff heard the recorded message on the answering machine and played it for his lawyer, whom plaintiff had previously worked for as a TCPA investigator. Id.

Plaintiff sought to certify a class of “‘all persons to whose residential telephone lines [Lifetime] or a third party acting on its behalf initiated’ the challenged prerecorded message.” Leyse v. Lifetime Entertainment Servs., LLC, — Fed. Appx. —, 2017 WL 659894, at *2 (2d Cir. Feb. 15, 2017). At the time of suit however, OnCall was no longer in business and did not possess the call list. 2015 WL 5837897, at *2. As neither Lifetime nor its vendor had a list of numbers called, Plaintiff proposed to identify class members by soliciting affidavits that (i) certified receipts of the message and (ii) provided phone bills showing subscription to the relevant residential telephone service during the relevant time period.

The District Court found that the plaintiff failed to show that the proposed method employed objective criteria or was administratively feasible. The District Court therefore found that the proposed class was unascertainable since (i) there was no list of numbers that were called; (ii) no such list was likely to be discovered; and (iii) proposed class members could not reasonably be expected to remember the brief phone call they supposedly received six years prior.

The Second Circuit affirmed, reasoning that “[a]lthough a list of class members will not always be necessary to render a class ascertainable, we identify no abuse of discretion in this finding that [plaintiff] had failed to show a sufficiently reliable method for identifying the proposed class to avoid ‘mini-hearing[s] on the merits of each case.’” 2017 WL 659894, at *2 (second alteration in original).

The Second Circuit, however, also held that the receipt of the phone calls in alleged violation of the TCPA were sufficient to confer standing. Defendant—despite having a judgment entered in its favor—cross-appealed, challenging the plaintiff’s standing to bring suit. (Although Defendant challenged Plaintiff’s statutory standing in the District Court as Plaintiff was not the subscriber of the telephone service, Defendant only appealed the District Court’s determination that Plaintiff had constitutional standing and the denial of summary judgment on other grounds.) The Second Circuit expressly did not decide whether merely initiating the phone call—in violation of 47 U.S.C. § 227(b)(1)(B)—is sufficient to establish an injury-in-fact that confers standing, because the record demonstrated that the Plaintiff listened to the pre-recorded voice message in his home. The Second Circuit then held that “[i]nsofar as the TCPA protects consumers from certain telephone contacts, we conclude that [Plaintiff’s] receipt of such an alleged contact in the way described demonstrates more than a bare violation and satisfies the concrete-injury requirement for standing.” 2017 WL 659894, at *1.

While the Court’s ruling confirms a plaintiff’s standing to bring TCPA claims, it exemplifies the hurdles a plaintiff must overcome to certify a class when there is no reasonable means of ascertaining class membership.

©2018 Drinker Biddle & Reath LLP. All Rights Reserved


About this Author

Michael J. Stortz, Commercial Litigation Lawyer, Drinker Biddle

Michael Stortz is a partner in the firm’s Litigation Group and Communication Litigation Practice Group.  He has successfully defended companies against claims of unfair competition, false advertising, consumer fraud, breach of warranty, and product defect.  

Michael’s practice includes the defense of nationwide and regional litigation, including multidistrict and putative class action litigation, and on appeals arising out of such litigation.  He has tried such claims to successful conclusion in federal and state courts, as...


Andrew L. Van Houter is an associate in the firm’s Litigation Group based in the Florham Park office. Andrew focuses his practice on financial services, class actions, antitrust matters and commercial litigation. 

Andrew has represented global financial institutions and corporations in multiple types of litigation, including breach of contract matters, federal and state securities claims relating to mortgage-backed securities and “naked” short sales, shareholder derivative actions, antitrust and commodity manipulation class action claims, employment discrimination actions and claims brought under the Anti-Terrorism Act related to alleged money laundering. Andrew has also conducted internal investigations concerning anti-money laundering practices, suspicious trading and allegations of abuse at a university.

In General. Prior to joining Drinker Biddle, Andrew was an associate at Sullivan & Cromwell LLP. He earned his law degree, summa cum laude, from Seton Hall University School of Law, where he served as a submissions editor for the Seton Hall Law Review and was inducted into the Order of the Coif.  At Seton Hall, Andrew received the Raymond Del Tufo, Jr.  Constitutional Law Award and an award for his contribution to the Impact Litigation Clinic for his work on appellate briefing concerning racial discrimination.  Andrew earned his bachelor’s degree, cum laude, from Touro College, Lander College for Men.