In Revitch v. Citibank, N.A., No. C 17-06907 WHA, 2019 U.S. Dist. LEXIS 72026, at *11-14 (N.D. Cal. Apr. 28, 2019), Judge Alsup denied class certification in a TCPA “wrong number” class action.
District courts have split on the propriety of class certification in similar “wrong number” TCPA actions. Plaintiff heavily relies on a line of decisions that includes West v. California Services Bureau, Inc., 323 F.R.D. 295 (N.D. Cal. 2017), where Judge Yvonne Gonzalez Rogers granted certification of an similarly-defined “wrong number” class in a TCPA action brought again a debt-collection company. There, as here, the defendant denied that phone numbers denoted as “wrong numbers” in the defendant’s system actually reflected calls to wrong numbers. Judge Gonzalez Rogers found persuasive, however, that plaintiff could use a reverse number lookup service to find discrepancies between the service’s and the defendant’s records and thereby resolve consent on a class-wide basis. Id. at 300-02. Citibank, in turn, points to a line of cases that includes Tomeo v. CitiGroup, Inc., No. 13-cv-4046, 2018 U.S. Dist. LEXIS 166117, 2018 WL 4627386 (N.D. Ill. Sept. 27, 2018) (Judge Sara Ellis), where the district court concluded that FRCP 23(b)(3)’s predominance requirement had not been met where the defendant put forth evidence establishing that a significant percentage of the putative class consented to receiving calls. Specifically, the defendant’s experts demonstrated that the individuals coded as “wrong numbers” did not necessarily constitute individuals who did not consent to calls. 2018 U.S. Dist. LEXIS 166117, [WL] at *9. Plaintiff argues that Tomeo is distinguishable because, there, the plaintiff relied only on the defendant’s records to identify wrong number calls without using a “reverse lookup service” as is proposed in the instant case. Relying on Judge Gonzalez Rogers’s decision in West, plaintiff further argues that this difference is determinative. This order disagrees. Unlike the defendant in West, and as in Tomeo, Citibank has put forward an evidentiary basis from which to conclude that adjudicating whether or not members of the class consented to its calls lacks a common method of proof. The undersigned judge remains convinced that the consent issue will devolve into individualized inquiries which would overwhelm the trial. For this same reason, our court of appeals’ recent decision in True Health Chiropractic, Inc. v. McKesson Corporation, 896 F.3d 923 (9th Cir. 2018), does not aid plaintiff. There, the appellate court recognized that “[a] defendant can produce evidence of a predominance-defeating consent defense in a variety of ways.” Id. at 931-32. Accordingly, and although it refused to consider “consent defenses that [the defendant] might advance or for which it has presented no evidence,” True Health concluded that the defendant had provided evidence in the district court that its consent defenses as to certain claims “would be based on individual communications and personal relationships between [the defendant’s] representatives and their customers” and that “[t]he variation in such communications and relationships” warranted denying class certification as to those claims. Id. at 932. So too here. Plaintiff’s remaining arguments to the contrary lack merit. Plaintiff incorrectly portrays consent as an issue of ascertainability rather than predominance. The problem here is not identifying the individuals who fall within plaintiff’s proposed class. Rather, the problem is that adjudicating the claims of those who do fall within plaintiff’s proposed class would devolve into the tedious resolution of individualized issues based on individualized evidence. Plaintiff also argues that Citibank could not use its account-level documents to show consent at trial because the documents are inadmissible double hearsay. This order disagrees. To the extent the records contain statements by putative class members indicating consent, those statements are non-hearsay admissions of party opponents. FRE 801(d)(2). As to the account records themselves, plaintiff argues that the records “indicate lack of trustworthiness” such that the records cannot fall with FRE 803(6)’s exception for business records. This order again disagrees. While some portion of Citibank’s records run the risk of containing misinformation due to “human error,” nothing indicates that Citibank’s records are so unreliable that they should be deemed inadmissible in their entirety. Because plaintiff has failed to meet his burden of demonstrating that certification of a FRCP 23(b)(3) class would be appropriate, the motion for class certification is Denied.