In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2019 U.S. Dist. LEXIS 183886, at *9 (D. Mass. Oct. 23, 2019), Judge Gorton denied class certification of a TCPA wrong-number class.
Implicit in Rule 23 is consideration of whether the identification of potential class members is “administratively feasible.” Shanley v. Cadle, 277 F.R.D. 63, 67 (D. Mass. 2011). All class members need not be identified at the outset but the class must be determinable by “stable and objective factors.” . . . The parties’ experts dispute whether it is possible to identify the individuals who actually received telephone calls from Boston Scientific on a class-wide basis. Defendant’s expert emphasizes that there is no centralized database linking individual subscribers to phone numbers and that the private databases used by plaintiff’s expert are inaccurate and unreliable. As evidence of such unreliability, defendant’s expert submits that the reverse-append process does not even identify plaintiff as a class member. Indeed, the databases utilized by plaintiff’s expert do not associate plaintiff with the telephone number called by Boston Scientific until after Boston Scientific’s calls. Plaintiff is identified as the individual actually called by Boston Scientific only by application of the six-month fuzzy period and by virtue of individual testimony or analysis of plaintiff’s phone records. Notably, this is not the first time plaintiff’s expert, Ms. Verkhovskaya, has faced criticism that her reverse-append process failed to identify the named [*11] plaintiff in a putative class action under the TCPA. See Wilson v. Badcock HomeFurniture, 329 F.R.D. 454, 457 (M.D. Fla. 2018) (explaining that Ms. Verkhovskaya’s analysis did not identify the named plaintiff as a class member without individualized inquiry). Defendant also points to several other inconsistencies in Ms. Verkhovskaya’s three reports (original, supplemental and rebuttal). For example, defendant contends that 1) 60% of the names identified by Ms. Verkhovskaya as wrong numbers in her supplemental report were not identified as wrong numbers in her original report and 2) up to 59% of the numbers identified as wrong numbers in Ms. Verkhovskaya’s rebuttal report are “exact matches” to last names on Boston Scientific’s list of intended recipients. Also problematic is Ms. Verkhovskaya’s inconsistent use of the so called “fuzzy” period. In her rebuttal report, Ms. Verkhovskaya claims that she consistently applied the fuzzy period as a class-wide methodology and as a means of identifying plaintiff as an offended party. Ms. Verkhovskaya testified, however, that the fuzzy period is not applied if any other name associated with a telephone number during the relevant time period belongs to the intended recipient of the call. As emphasized by defendant’s [*12] expert, according to the databases utilized by Ms. Verkhovskaya, plaintiff’s number was associated with S.B., the intended call recipient, within six months of Boston Scientific’s calls. More troublesome still, Ms. Verkhovskaya provides no support for her use of the “fuzzy” period which defendant’s expert challenges as unsupportable. Plaintiff assures the Court that any discrepancies between identified wrong numbers and intended recipients can be resolved by a self-attestation process whereby each member of the proposed classes would assert 1) whether he or she was the user of the number in question on the date of Boston Scientific’s call and 2) whether he or she registered the number on the National Do-Not-Call Registry. The First Circuit Court of Appeals has stated that unrebutted testimony contained in affidavits is sufficient to identify proposed class members. See In re Nexium AntitrustLitigation, 777 F.3d 9, 21 (1st Cir. 2015). Where testimony is genuinely challenged and relevant to an element of a party’s affirmative case, however, a class cannot be certified without providing the defendant an opportunity to litigate its defenses. In re Asacol Antitrust Litigation, 907 F.3d at 53. Here, consent is a defense to the TCPA claim of each member of the putative class. Defendant has a right [*13] to challenge, and has expressly stated its intention to do so, any submitted affidavits purporting to self-identify as class members on the ground of consent. See, e.g., Wilson, 329 F.R.D. at 459-60. As a result, the challenged affidavits would be inadmissible and each of the thousands of putative class members would be subject to cross-examination at trial. Such a procedure has been expressly rejected in this Circuit as a means for identifying class members. See In re Asacol Antitrust Litigation, 907 F.3d at 58. Although this Court is convinced that plaintiff has failed to establish that the proposed classes are ascertainable, it need not definitively resolve that issue because it finds that plaintiff has not demonstrated that common issues predominate under Rule 23(b)(3). See Wilson, 329 F.R.D. at 459 (noting a “general reluctance by many courts to deny class certification because of administrative difficulties”).