In Lavigne v. First Community Bancshares, Inc., 2018 WL 2694457, at *7–8 (D.N.M., 2018), Judge Johnson certified a TCPA ‘wrong-number’ class.
Plaintiff proposes that the class includes all individuals, according to Defendants records, who (1) called in to Defendants and were coded as “Bad/Wrong Number”, and were (2) subsequently called again by Defendants, and were coded as “Bad/Wrong Number.” Plaintiff proposes to weed out any customers either by reference to (1) affidavits from potential class members averring they are not customers of the Defendants, or (2) Defendants’ deposit agreements. By excluding Defendants’ customers, Plaintiff excludes any individuals who could have consented to Defendants’ calls. The Court concludes that the class is ascertainable, as class members can be readily identified by objective criteria based on Defendants’ business records.  Moreover, the Court concludes that common issues predominate, and Plaintiff’s proposed methodology eliminates individualized inquiries or mini-trials. The class members appear to be in the same factual situation, and the class is likely to fail or succeed on the merits (such as whether class members expressly revoked consent) on the same common evidence, i.e., Defendants’ business records.    Defendants argue that the class cannot be ascertained, because Plaintiff has no way to weed out customers from its class. As explained above, Plaintiff has devised a methodology to weed out Defendants’ customers. Defendants did not object to this methodology, and Defendants have provided no evidence that Plaintiff’s proposed class actually consists of bank customers. The 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. Bridging Communities Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1125–26 (6th Cir. 2016) (“Even where defendants point to some evidence that a defense will indeed apply to some class members, which is more than Top Flite did here, courts routinely grant certification because “Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.”), cert. denied, 138 S. Ct. 80, 199 L.Ed. 2d 25 (2017), citing Smilow v. Sw. Bell. Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003) (“As the First Circuit has recognized, moreover, if evidence later shows that a defense is likely to bar claims against at least some class members, then a court has available adequate procedural mechanisms. For example, it can place class members with potentially barred claims in a separate subclass, or exclude them from the class altogether.”).  Defendants also argue that this litigation will devolve into individualized issues of consent, because there is no way to tell whether any of the customers who called in gave express notice to Defendants that (1) they were calling the wrong person, or that (2) the number had been reassigned. They assert that a call could be coded “Bad/Wrong Number” for many reasons unrelated to the fact that a third party was called. Initially, a number of courts have rejected this theory in “Wrong Number” cases, under similar factual circumstances, at the class certification stage. See Johnson v. Navient Sols., Inc., 315 F.R.D. 501, 503 (S.D. Ind. 2016); Munday, 2016 WL 7655807, at *4; Abdeljalil, 306 F.R.D. at 309 (rejecting argument that class is not ascertainable because notation in account for “bad number” does not necessarily mean that number belonged to non-account holder); West v. California Servs. Bureau, Inc., 2017 WL 6316823, at *4 (N.D. Cal. 2017) (“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.”).  Moreover, Defendants’ theory conflicts with their representatives’ own testimony. Schordock Tr. at 51:9-18 (“Bad/Wrong Number” code on an inbound call means that “somebody’s saying it’s not them that we’re dialing.”). Most of the alternative reasons for coding a call as “Bad/Wrong Number” apply to customers or to outbound calls—not here. Thus, whether a call log record for an inbound call of “Bad/Wrong Number” is sufficient to impart express notice to Defendants that they were calling the wrong party is a class-wide issue.   Defendants’ assertion that non-customers called in for some reason other than notifying Defendants that they were calling the wrong person defies common sense. In any event, Defendants’ objections do not show any individualized issues. Either this evidence will or not will be sufficient to establish liability on a class-wide basis. There is unlikely to be much, if any, individualized evidence. See, e.g., Stern v. DoCircle, Inc., 2014 WL 486262, at *3 (C.D. Cal. Jan. 29, 2014) (“But this is an argument that Plaintiff will lose on the merits, not an argument as to whether the class definition is administratively feasible.”). Practically, for these types of TCPA violations, liability is likely only to be established by business records. The issue of whether Defendants received express notice that the number has been reassigned, but continued to call class members anyway, will be resolved based on legal theories and evidence common to all class members.   Finally, Defendants argue that the class is overbroad, because it includes individuals who consented to being called, i.e., bank customers. As explained above, Plaintiff’s proposed method is to exclude customers either by (1) affidavit or attestation by the proposed customer, or (2) cross-reference with Defendants’ deposit agreements. The Court finds this methodology workable, and Defendants have not objected to it or explained why it would not work.    In sum, Defendants’ consent defense applies to whether liability can be established on a class-wide basis, and does not create individualized issues nor make this class action administratively infeasible. The Court concludes that the class is ascertainable and that common issues predominate over individual issues.