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Second Circuit Class Action Litigation | Fall 2019

Hunter v. Time Warner Cable, No. 15-CV-6445 (JPO), 2019 U.S. Dist. LEXIS 137495 (S.D.N.Y. Aug. 14, 2019)

Court denies certification in TCPA case where plaintiffs failed to present a reliable methodology for identifying those who had received improper calls.

In August 2019, the Southern District of New York denied the motion for class certification in a decision emphasizing the importance of expert witness testimony at the class certification stage. In this putative class action, plaintiffs alleged violations of the Telephone Consumer Protection Act (TCPA) based on allegedly unsolicited robocalls to cell phones. Plaintiffs claimed the robocalls were “wrong number calls” directed to individuals not associated with plaintiffs and were part of a debt collection campaign. After taking class discovery, plaintiffs moved for class certification, supported by an expert report.

The court’s analysis focused on whether ascertaining class membership would require individualized determinations that would predominate over common issues. The court found that, under Second Circuit precedent, “difficulty in determining class membership is a factor considered under the predominance prong.” Plaintiffs argued that ascertaining class membership would not require individualized inquiries, relying on the methodology proposed by their expert witness. Plaintiffs’ expert proposed that “reverse-lookup” data provided from LexisNexis could be used to determine the identity of a user of a phone number at a specific time, and that data could be compared to defendant’s call record to establish the occasions on which the robocall program made wrong-number calls.

The court, however, found that testimony from LexisNexis undermined plaintiffs’ expert. According to LexisNexis, its data “cannot be used to determine definitively the subscribers or customary users of a telephone number on a current or historical basis.” In addition, defendant’s expert found substantial issues with plaintiffs’ expert’s methodology, including that a sample of 75 alleged wrong-number call recipients showed that 65 were properly called.
In rebuttal, plaintiffs argued they were not required to present a definitive method for identifying class members at the class certification stage. The court rejected this argument because “plaintiffs bear the burden of satisfying the Rule 23 requirements … including predominance [and] the predominance inquiry considers the means of determining membership in the proposed class.” Plaintiffs also argued that courts had found reverse-lookup tools sufficient to identify class members in other TCPA cases. Emphasizing its obligation to conduct a “rigorous analysis” of the facts, the court found the citation to what other courts had done insufficient to satisfy the predominance requirement given the specific flaws in plaintiffs’ methodology.

Part of the Fall 2019 Class Action Litigation Newsletter available here.

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Robert Herrington, Greenberg Traurig Law Firm, Los Angeles, Cybersecurity Litigation Attorney
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Robert J. Herrington is an attorney in firm's Products Liability & Mass Torts Practice. He focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries, including apparel and footwear, retail, emerging technologies, consumer electronics, video game, telecommunications, advertising and publicity, online retailing, food and beverage, nutritional supplements, personal care products...

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Stephen L. Saxl Class Action Attorney Greenberg Traurig
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Stephen L. Saxl is the Co-Chair of the Class Action Litigation Group. He concentrates his practice on defending class actions and complex litigation matters in federal court and New York State courts. His class action experience includes cases in the securities, retail, telecommunications, publishing, insurance, Internet and tobacco industries. He has defended clients against statutory and common law claims including fraud, unfair trade practices, Racketeer Influenced and Corrupt Organizations (RICO), breach of contract and price-fixing.

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