While most Courts (properly) refuse to certify wrong number class actions in multi-source TCPA cases, at least one bank was just reminded how dangerous wrong number TCPA class actions remain. This is especially true when a court allows a Plaintiff to use a Defendant’s own coding against it.

In Lavigne v. First Cmty. Bancshares, Civil No. 1:15-cv-00934-WJ/LF, 2018 U.S. Dist. Lexis 94055 (D. N.M. June 5, 2018) the Court certified a class consisting of phone numbers associated with accounts bearing one of 37,219 “Bad/Wrong Number” notations in a Defendant’s records, that subsequently received further calls.

As TCPAland residents know, certification of these sorts of cases is often defeated by Defendants owing to the richly diverse circumstances surrounding the entry of each such wrong number notation by a caller’s agents, the impossibility of ascertaining true “wrong number” recipients, and the variances of re-consent issues. In the end, the presence or absence of a “wrong number” code rarely correlates consistently to anything vis the factual circumstances underlying any specific call–making individualized inquiries as to why the call took place crucial on the merits issues. Those individualized issues, of course, defeat certification. Most of the time.

Whereas, for instance, we were famously able to defeat certification in Tillman v. Ally, Case No. 2:16-cv-00313-JES-CM (M.D. Fl. Sept. 29, 2017)(unsealed)–a putative wrong number TCPA class action–by emphasizing Ally’s outstanding TCPA compliance policies, it appears that the Defendant in Lavigne was not so blessed. Indeed, the Lavigne court commences its analysis by noting “it is unclear whether Defendants and GC Services has any system in place to maintain compliance with the TCPA.” Lavigne at *2-3. That is not where you want the Court starting from in analyzing certification and that observation foreshadowed–and perhaps dictated–the result.

The Court begins its analysis on certification by identifying three common issues: i) whether the Aspect Unified IP used to call class members was an ATDS; ii) whether Defendants were on notice that they were directing their vendor to call without consent; and iii) whether the class suffered the same injury. While there’s no need to find fault so early in the analysis, it is notable that only item i) seems to be a common issue that actually pertains to the merits of the case–so as to resolve a TCPA liability issue in “one stroke” as required by Dukes. Whether a Defendant is “on notice” is not pertinent to a TCPA claim (at least not yet). Nor should the “sameness” of the injury be presumed– assuming that’s pertinent to the analysis of a valid TCPA claim at all–as  different individuals experience a wrong number phone call (if that’s what happened) differently. As the FCC itself has noted, most people do not sue in response to a wrong number call–they do not feel injured enough to do so. Yet those subjectively uninjured individuals are looped into the same lawsuit as those few curious individuals that elect to sue in the name of vindicating their sterile statutory rights, as well as those rare individuals who may actually be injured by a phone call–and yet all of these injuries (and non-injuries) are presumed to be the same for commonality purposes. Seems difficult to justify, but I digress.

After identifying these common issues, the court finds a lack of offsetting individualized issues because “[t]he same evidence, Defendant’s own records, will provide common answers to legal and factual questions related to consent issues for all class members.” Lavigne, at *11. It is unclear from the decision what facts support this rather sweeping finding–although the Plaintiff did use the Defendants’ deposition testimony against it to good effect. See Lavigne at *21. Presumably, however, the Defendants failed to submit evidence to the effect that the circumstances surrounding the use of the “Bad/Wrong Number” notation might differ as to class members on the issue of consent.

The Court expressly rejected, however, the Defendants’ arguments that the “Bad/Wrong Number” notation might not actually relate to a wrong number. Given the circumstances surrounding the use of the code during inbound calls, the Defendant’s theory that the coding might not be related to wrong number reports “defies common sense.” Lavigne at *21-22.  Instead the Court focused on the lack of evidence surrounding the Defendants’ efforts to stop calls when such a notation appears. And that, presumably, is what separates the results of Lavigne and, say, Tillman— the Tillman defendant absolutely did stop calling “wrong number” coded numbers; the Defendants in Lavigne, apparently, did not.

Notably the Lavigne Court was cognizant of the possibility that some class members may have been customers lacking valid TCPA claims. Nonetheless, the Court accepted the Plaintiff’s proposed methodology for eliminating those individuals, purportedly without the need for separate mini-trials. Specifically, Plaintiff proposed to use the Defendant’s deposit agreements to remove customer class members–although it is not clear how–and the Plaintiff also intended to use declarations from class members to the effect that they were not customers. Again, not to pick on the analysis here, but it is unclear to me how a class-member declaration can be used to defeat a trial on the issue of whether or not a person is a customer and received a wrong number phone call–the Defendant has a constitutional right to cross-examine the witness, after all. See Shamblin v. Obama For America, Case No. 8:13-cv-2428-T-33TBM. (“Defendants have a constitutional right to a jury determination as to whether any person consented to receiving calls to their cellular telephone.”) Then again the Defendants may have themselves to blame for this part of the result–as the Court relates matters “[t]he Court finds this methodology workable, and Defendants have not objected to it or explained why it would not work.” Lavigne at *22. Mystery solved perhaps.

In any event, Lavigne serves as yet another reminder that TCPAland is a dangerous place. Defense of wrong number TCPA class actions is not for the faint of heart or the green of horn. Be careful out there friends.