In Reyes v. BCA Financial Services, Inc., 2018 WL 3145807 (S.D.Fla. 2018), the District Court certified a TCPA class action.
On that question, the Court agrees with Reyes that she has presented an administratively feasible method of identifying class members. Although “B” flags or “WN” notations may not incontrovertibly establish that BCA dialed a wrong number, and thus would not conclusively establish who is a class member, that fact does not defeat class certification because Reyes is not proposing to rely solely on BCA’s records to identify class members. Rather, those notations would represent a starting point from which Reyes can further define the class through the methods described by her expert, including the use of self-identifying affidavits and subpoenas. That method would be consistent with Karhu. Reyes is not “establish[ing] ascertainability simply by asserting that class members can be identified using [BCA’s] records.” 621 F. App’x at 946. Rather, Reyes is saying that those “records are in fact useful for identification purposes” because they narrow the potential class. Id. Moreover, there is no indication that, in this particular case, self-identification through affidavits is not administratively feasible or “otherwise problematic.” Id. Furthermore, the Court disagrees with BCA’s position that the limitations in its records keeping (i.e., the different meanings of its coding and the lack of historical track record in the coding) prove fatal to class certification. The problem with that position is that, in simultaneously rejecting other methods by which potential class members may be identified, BCA is “essentially arguing that the contours of the class should be defined by [its] own recordkeeping.” Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 250 (N.D. Ill. 2014) (rejecting similar argument in a TCPA case). But that “would create an incentive for a person to violate the TCPA on a mass scale and keep no records of its activity, knowing that it could avoid legal responsibility for the full scope of its illegal conduct.” Id. Moreover, “[c]lass certification is not precluded simply because a class may include persons who have not been injured by the defendant’s conduct.” Mims v. Stewart Title Guar. Co., 590 F.3d 298, 308 (5th Cir. 2009); see also Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-CV-00934-WJ/LF, 2018 WL 2694457, at *7 (D.N.M. June 5, 2018) (granting motion to certify class in TCPA case and rejecting challenge to ascertainability by noting that “[t]he fact that the class may inadvertently include some customers that consented is not fatal to the predominance inquiry, especially since they can be weeded out.”). In addition, my conclusion is further supported by not just what Reyes has presented, but also by what BCA has failed to present. Specifically, although BCA says that a “B” flag may have meanings other than to indicate a “wrong number,” BCA presents no evidence of any actual phone number that was coded with a “B” flag to indicate something other than a wrong number. Similarly, BCA has presented no evidence that a WN-coded phone number corresponded to something different from a wrongly-dialed number. And neither has BCA shown a single instance whether a phone number designated as a cellphone was not actually a cellphone when the subject calls took place. Moreover, “a number of courts have rejected this theory in ‘Wrong Number’ cases, under similar factual circumstances, at the class certification stage” — i.e., that there are many reasons why a number could be coded as a wrong number. Lavigne, 2018 WL 2694457, at *8; see also West v. Cal. Servs. Bureau, Inc., 323 F.R.D. 295, 301–02 (N.D. Cal. 2017) (“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 Sols., Inc., 315 F.R.D. 501, 503 (S.D. Ind. 2016) (certifying TCPA action even though the defendant “point[ed] out the distinct possibility that every record marked as a wrong number may not have actually been a wrong number”); Abdeljalil v. Gen. Elec. Capital Corp., 306 F.R.D. 303, 307 (S.D. Cal. 2015) (finding class ascertainable despite argument that “the term ‘wrong number’ could appear in an account holder record where an account holder has changed phone numbers or is trying to evade a debt collection by falsely stating defendant’s associate had reached a wrong number.”). That is not to say, of course, that BCA must prove its entire case to defeat class certification. And it does not escape the Court that the burden of proving ascertainability falls on Reyes. But, even so, BCA must present more than mere speculation to defeat class certification.