In Warnick v. Dish Network LLC, 2014 WL 2922660 (D.Colo. 2014), Judge Daniel refused to certify a TCPA class against DISH Network as documented in DISH’s “TCPA Tracker” database.
Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “robocalls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent. In his Class Action Complaint filed July 26, 2012, Plaintiff brings a claim on behalf of himself and all others similarly situated for violations of the Telephone Consumer Protection Act [“TCPA”]. Plaintiff alleges that DISH has also placed similar pre-recorded “robocalls” to the cellular telephone numbers of thousands of similarly situated persons without their prior express consent and that DISH has documented thousands of instances of such calls in a computer database called the “TCPA Tracker.” Plaintiff seeks statutory damages, injunctive relief, and reasonable attorneys’ fees and costs.
The Court found the class unascertainable.
I now turn to the most recent class definition that Plaintiff proposes. He seeks to certify a class of those individuals to whom DISH placed robocalls who were either not a DISH customer or who previously asked DISH to cease making such calls through a suppression request. Plaintiff argues that it is administratively feasible to determine whether any particular individual meets these criteria because DISH’s business records identify its customers and the telephone numbers robocalled by its dialer. ¶ Plaintiff also identifies a methodology for ascertaining the class members. ( [Proposed] Order Granting Pl.’s Mot. Class Certification, ECF No. 220, at 9–11.) He relies on the ability of his expert witness Robert Biggerstaff to query DISH’s records and the ability of various vendors to scrub the list of telephone numbers at issue to identify which of those were assigned to cellular telephone service at the time of the calls. ¶ Further, as to the portion of the class that are noncustomers who were robocalled, Plaintiff proposes that where the TCPA Tracker identifies the first and last name of the complainant, that person will be a class member. Where the first and last name are not identified, he proposes subpoenaing telephone carriers for the telephone numbers and directing them to (1) identify the name, address, and social security number of the subscriber to that number at the time of the calls, and (2) identify how many separate telephone lines were on that account. Plaintiff will then utilize A.B. Data to identify other addresses associated with those persons and the names of other household members at those addresses during the relevant time period. Thereafter, DISH’s customer database will be queried for those names, addresses, and social security numbers—any matches will be excluded from the class as a potential customer of DISH and the remaining persons will be class members. Should the Court require a final cross-check on the reliability of the methodology after a finding of liability, Plaintiff asserts it could order that notice be provided to those class members who had more than one telephone line that would require them to access a website and provide their cellular telephone number at the time of the calls to ensure they are the person robocalled by DISH rather than a person sharing a family plan with such a person. ¶ DISH objects to the newly revised class definition, arguing that it has the same problems as the original class definition and is compounded by new ones. DISH asserts that the only calls that can be in Plaintiff’s class are anomalies—calls made by mistake because of data entry or customer error, and that it is illogical and unprecedented to suggest a class of anomalies is ascertainable through objective, reliable proof on a class-wide basis. DISH also objects to the methodology proposed by Plaintiff for ascertaining the class. ¶ Turning to my analysis, I find that the class is not administratively feasible, and thus not ascertainable. Instead of limiting the class definition to the TCPA Tracker Dataset of 27,000+ individuals as discussed at the hearing and which I indicated might be a manageable class, Plaintiff has purposely kept the class definition broad, including in section (d) of the class those “who were not DISH customers at the time of the calls, such as persons who were identified in the TCPA Tracker.” Thus, while Plaintiff referenced the TCPA Tracker in his definition, he did not limit the class to people within that Tracker as discussed at the hearing on class certification. He also added an entirely new class consisting of both customers and noncustomers of DISH who were called after making a suppression request, even though Plaintiff has not presented any evidence that anyone has ever been called after making a suppression request. Plaintiff also removes “consent” from the definition of the class, meaning as to the subclass in section (d) that the class would include all persons called with their consent. ¶ DISH asserts that the proposed class definition, as revised, will require that all of DISH call records and all of its 25 million customer accounts be reviewed to find potential class members. DISH argues, and I agree, that Plaintiff asks to impose an enormous and disproportionate burden on DISH–to notify and obtain consent under the Satellite Television Extension and Localism Act (“STELA”), 47 U.S.C. § 338(i)(4)(A) FN2, from all of its 25 million customers to produce and allow Plaintiff’s counsel and his experts to search through 600+ million calls and account records to try and find potential class members. Indeed, given the way the subclass is defined in section (e), DISH asserts that there is no other means of trying to figure out whether a number was called. Plaintiff has thus not heeded my statement at the hearing that “under no circumstance can I consider certifying a class if we are talking about having to look at millions and millions of calls.” ( Id. at 44:2–4.)
The Court refused to re-define the class because of concern that the Plaintiff would not have standing to represent the re-defined class.
The question then becomes whether I should attempt to revise the class definition in some way to try to make the class ascertainable. Notably, if I were to limit the class as defined in section (d) to persons in the TCPA Tracker, Plaintiff would not be included in the class. Since he never called DISH to complain about calls, he was not a part of the TCPA Tracker. He also would not be a member of the other subclass in section (e) of the class definition, which is comprised of customers and non-customers that made a suppression request but may have been inadvertently called thereafter. See Labou v. Cellco Partnership, No. 13–844, 2014 WL 824225, at *4 (E.D.Cal. Mar. 3, 2014) (“Plaintiff, as a non-Verizon customer, presents different claims than that of Verizon customers….”) ¶ Accordingly, a revision limiting the class to persons identified in the TCPA Tracker would not be appropriate as Plaintiff would lack standing to sue as a class representative. See Dukes, 131 S.Ct. at 2550 (“a class representative must a part of the class” he seeks to represent); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974) ( “To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents”); Labou, 2014 WL 824225, at *4–5 (denying class certification where plaintiff sought to certify a TCPA class of customers and non-customers of Verizon who were called without consent because the claims of plaintiff as a noncustomer were not typical of the class of customers). As noted by another district court, whose reasoning I find persuasive: The procedural expedient of plaintiff class certification should not be mistaken for the sort of legal relationship that confers standing on representatives to litigate the claims of individual members…. In Weiner v. Bank of King of Prussia, 358 F.Supp. 684, 694–95 (E.D.Pa.1973), Judge Newcomer stated that a plaintiff “may not use the procedural device of a class action to boot strap himself into standing he lacks under the express terms of the substantive law…. The plaintiff’s standing to bring an action against each defendant named in the Complaint must be established independently of Federal Rule of Civil Procedure 23. Only then is a plaintiff in a position to represent others having similar claims against those same defendants.” Akerman v. Oryx Commc’ns, Inc., 609 F.Supp. 363, 377 (S.D.N.Y.1984).