In West v. California Services Bureau, Inc., 2017 WL 6316823, at *2 (N.D.Cal., 2017), Judge Rogers certified a “wrong number” TCPA class.  The facts were as follows:
Plaintiffs allege that defendant “repeatedly” called them on their cellular telephones using an autodialer and/or an artificial or prerecorded voice. (Id. ¶¶ 25-26, 29-30.) Plaintiffs further allege that they did not provide defendant with prior express written consent, and they specifically asked defendant to stop calling. (Id.) Defendant allegedly called plaintiffs West and Membreno approximately twenty times each. (Id. ¶¶ 18, 20.)   To make these calls, plaintiffs offer evidence indicating that defendant utilizes an autodialer system known as the Global Connect GH1 Peak Dialer (“Global Connect dialer”). (See Ayman Dep. at 66:18-22.) The Global Connect dialer can dial thousands of phone numbers in a short period of time. (Id. at 75:8-10.) Plaintiffs allege thus regarding defendant’s business practices related to these calls:   Defendant receives debt-accounts from creditors. (Id. at 16:5-23.) CSB utilizes the Global Connect dialer for two types of calling campaigns, namely “automated calls where an agent was preset” and “agentless calls.” ( 66:25-67:4.) With regard to agentless calls, CSB would program the Global Connect dialer to call phone numbers and play a pre-recoded message.  CSB placed approximately 32.7 million calls using the Global Connect dialer during the class period, and CSB’s 30(b)(6) witness agreed that it was “very common” for CSB to call “someone who indicates that we have a wrong number.” (Id. at 25:13-19, 143:7-16.)   Notably, defendant maintains two call log database which plaintiffs have provided. First, CSB’s internal “CUBS” system contains all phone numbers dialed by defendant. Within the CUBS system, approximately 69,380 phone numbers are notated as DNC (“do not call”) or WN (“wrong number”). (See Kopel Decl., Exs. 8-10.) Second, CSB maintains a smaller “wrong number” calls database of 800-900 accounts which CSB has identified as wrong numbers. (Amyot Dep. at 16:7-21.) CSB denies that either of these call log databases reflects actual calls to wrong numbers.
The District Court found that commonality and predominance were met.
With regard to the first issue which concerns the potential for phone numbers marked as WN or DNC to reflect the actual correct phone number of an intended recipient who provided consent, defendant offers the testimony of Mr. Amyot who states that it is “common in the debt collection industry, and in CSB’s experience, for a collector to reach a debtor who claims that [he] or she is not the debtor, or disguise his or her voice, or otherwise claim that CSB has reached the wrong person.” (Amyot Decl. ¶ 55.) Accordingly, defendant argues that determining whether a putative class member is entitled to relief demands an individual inquiry into whether each putative class member whose number is marked as WN or DNC in CSB’s databases was in fact listed in defendant’s records as the intended recipients of the calls.  Defendant relies on Davis in arguing that this issue presents an individualized inquiry which cannot be resolved on a classwide basis. Davis v. AT&T Corp., 2017 WL 1155350 (S.D. Cal. 2017). There, the court considered whether to certify a TCPA class based on notations in defendant’s call records which “indicated that prior to the second and/or an subsequent call, the call recipient indicated that Defendant had reached a ‘wrong number.’ ” Id. at *3. The Davis court found a lack of predominance partly because the “parties [would] still have to go through the ‘wrong number’ notations to determine whether those call recipients were, in fact, customers of Defendant at or before the time of the calls.” Id. at *5. In denying class certification, the court noted that “many customers tell callers they have reached the wrong number, though the customer’s number was dialed.” Id.   Defendant does not persuade. As an initial matter, several district courts have deemed commonality and predominance satisfied in TCPA cases despite the possibility that a substantial proportion of the phone numbers marked as “wrong number” in defendant’s call log databases “may not have actually been a wrong number.” Johnson v. Navient Solutions, Inc., 315 F.R.D. 501, 503 (S.D. Ind. 2016); see also Abdeljalil v. Gen. Elec. Capital Corp, 306 F.R.D. 303 (S.D. Cal. 2015).  Further, Davis is distinguishable. There, the court’s holding as to predominance was based largely on plaintiffs’ failure to articulate how a reverse number lookup service could be utilized to resolve “consent or lack thereof” on a classwide basis. See Davis, 2017 WL 1155350, at * 6. By contrast, in this case plaintiffs’ TCPA expert, namely Jeffery A. Hanson, explains precisely how a reverse number lookup service could be used to resolve consent issues on a classwide basis. First, the reverse number lookup service would “be used to identify the users for each of [the] numbers [appearing in defendant’s records] at the times of the calls.”7 (Hanson Decl. ¶ 56.) Second, “users identified from the reverse lookup service will then be compared with the account holders listed in [CSB’s] records.” (Id.) Finally, a discrepancy between CSB’s record and the reverse lookup service records “will indicate that a wrong number was called.” (Id.) Accordingly, the Court finds plaintiffs’ proposed methodology for resolving “consent or lack thereof” on a classwide basis sufficient. Davis, 2017 WL 1155350, at * 6. The second issue, namely whether a number marked as WN or DNC reflects a recipient’s number which was provided by the recipient’s family member who may have had authority to provide consent, similarly does not defeat class certification. In Davis, the Court noted that if “[d]efendant’s customer provided a number belonging to another person, such as a spouse or other family member, an inquiry into that customer’s authority to provide consent to call that number would be required.” Id. (citing Gutierrez v. Barclays Group, 2011 WL 579238 at *8-9 (S.D. Cal. Feb. 9, 2011). Here, the possibility that a recipient’s phone number was provided by a family member is more than theoretical. Specifically, the record reflects that the cell phone number of Sandra West was provided to CSB client Mississippi Physician by West’s son. (Dkt. No. 52, Declaration of Stephen A. Watkins (“Watkins Decl.”) ¶ 3, Ex. 1.)  Nonetheless, defendant does not persuade as this inquiry can be resolved on a classwide basis through a reverse lookup service. According to plaintiffs’ expert, the reverse lookup service will identify the users for each of the phone numbers which appear in defendant’s call log databases, not merely the account holder. (Hanson Rpt. ¶ 56; Hanson Decl. at 38:18-10.) Stated differently, a reverse lookup will generate a list of all individuals who customarily use each phone number. (Id.) This list would necessarily include family members who use the cell phone number and arguably have authority to consent to be called at that number. As noted, this list can be compared to defendant’s call log databases to determine on a classwide basis whether consent was given with respect to each class member.  Therefore, the Court finds that plaintiffs satisfy the requirement that questions common to the class “predominate over” other questions under Rule 23(b)(3).
The District Court then followed Briseno to find that superiority was met.
Defendant argues that plaintiffs’ claims lack superiority due to the difficulties in managing the class action. Specifically, defendant asserts that plaintiffs lack a comprehensive list of call recipients who did not consent and that putative class members cannot be identified using the Global Connect call records due to the “frequency of cell phone turnover.” (Opposition at 20.) Such manageability concerns are alone insufficient to defeat superiority of the proposed classes here. The Ninth Circuit has specifically noted that it was not clear why “requiring an administratively feasible way to identify all class members at the certification stage is necessary to protect [defendant’s] due process rights.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1132 (9th Cir. 2017). The Briseno Court further explained that defendants can “challenge the claims of absent class members if and when they file claims for damages” explaining that parties have “long relied on ‘claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court’ to validate claims.” Id. at 1131 (citation omitted).  Defendant’s reliance on Smith v Microsoft Corp., 297 F.R.D. 464, 473 (S.D. Cal. 2014), does not persuade. Contrary to the court’s finding in Smith, this Court finds that the statutory damages provided by the TCPA are not in fact “sufficient to compensate the average consumer for the time and effort that would be involved in bringing a small claims action against a national corporation.” Agne v. Papa John’s Int’l, Inc., 286 F.R.D. 559, 571–72 (W.D. Wa. 2012) (citing cases); see also Whitaker v. Bennett Law, PLLC, No. 13-CV-3145, 2014 WL 5454398, at *7 (S.D. Cal. 2014) (finding that given the damages allowed under the TCPA, “requiring the putative class members to adjudicate their claims independently would be too economically burdensome and would deprive many of a chance to recover under the law”). In light of these considerations, the Court finds that a class action is superior to individual adjudication