4th Circuit Upholds Class Certification Denial for Bank’s Alleged Robocall Violations Due to Difficulty of Identifying Class Members

The U.S. Court of Appeals for the Fourth Circuit recently affirmed a denial of class certification in a case alleging that a national bank violated the Telephone Consumer Protection Act (TCPA) by calling and leaving prerecorded messages on cell phones without consent.

The TCPA generally prohibits making calls to cell phones using an automatic telephone dialing system or an artificial or prerecorded voice, absent the prior consent of the person being called.  Here, the named plaintiff’s telephone number previously belonged to a bank customer who had consented to such calls.  The phone number was later reassigned to the plaintiff, who was not a customer of the bank.  The plaintiff received multiple debt collection calls intended for the bank customer who previously held the number, including several calls even after the plaintiff informed the bank that it was calling the wrong person and that he did not want to be called.

The district court denied certification of the case as a class action because the putative class members were not readily ascertainable, and the Fourth Circuit affirmed.  The named plaintiff submitted expert testimony on how to identify class members, but the court excluded this testimony.  Specifically, the expert proposed the following methodology to identify class members: 1) determine which of the bank’s calls had been placed to cell phones; 2) identify whether the bank had placed a call to a number after that number had been reassigned to a different person; 3) determine whether and when a telephone number was disconnected and reassigned; and 4) identify names and addresses of potential class members from publicly available information, and then subpoena telecommunication company records to identify the owner of each number.

Although the expert purported to test her methodology on 5,000 numbers that had received prerecorded calls from the bank, the district court found that the expert did not, in fact, fully implement and test her methodology as described.  The district court further found that testing performed by the bank’s expert showed that plaintiff’s proposed methodology had a high inaccuracy rate.  In turn, the Fourth Circuit concluded that the district court had a sufficient basis to exclude plaintiff’s expert’s testimony due to its poor reliability.

Beyond his proposed expert witness, the plaintiff offered little explanation on how class members could be identified using objective criteria and without requiring extensive individualized fact finding.  Thus, the Fourth Circuit concluded that the district court acted appropriately in denying the plaintiff’s motion for class certification.