District Court (N.Y.) Certifies TCPA Class

In Zyburo v. NCSPlus, Inc., — F.Supp.3d —-, 2014 WL 4536932 (S.D.N.Y. 2014), Judge Rakoff granted class certification in a TCPA class action.

This is a putative class action brought under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227 et seq., which prohibits certain kinds of telephone solicitations without the recipient’s consent. Plaintiff alleges that the defendant repeatedly called his cell phone using an automated telephone dialing system without his consent, including after plaintiff had informed the defendant that he was not the party the defendant was attempting to reach and had requested to be placed on the defendant’s “do not call” list.

The District Court rejected the Defendant’s arguments and granted class certification.

Defendant argues that, even though the defendant (a collection agency) was not itself provided with consent to call the cellphones of the putative class, such consent can be implied from the fact that preliminary data suggest that some members of the class gave such consent to the underlying creditor. In that regard, defendant relies on a ruling of the Federal Communications Commission that “provision of a cell phone number to a creditor, e.g., as a part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” 2008 Decl. Ruling, 23 F.C.C. Rcd. 559, 565 ¶ 10, 2008 WL 65485 (F.C.C. Jan. 4, 2008). But see Mais v. Gulf Coast Collection Bureau, Inc., 944 F.Supp.2d 1226 (S.D.Fla.2013) (explicitly rejecting the 2008 FCC ruling as inconsistent with the TCPA’s plain language requiring prior express consent rather than implied consent); Thrasher–Lyon v. CCS Commercial LLC, 2012 WL 5389722, at *3 (N.D.Ill. Nov. 2, 2012) (“Agreeing to be contacted by telephone … is much different than expressly consenting to be robo-called about a debt”). ¶ Even on its own theory, defendant has not made a sufficient showing to defeat class certification, since, by its own admission, the defendant keeps poor or nonexistent records of which class members have given consent to the underlying creditor. Defendant is in effect asking the Court to reward its imperfect record-keeping practices by precluding class certification. Defendant has no policies or procedures for determining whether the telephone numbers it receives from its clients and autodials are cellular numbers, or for determining whether the recipients of its autodialed calls have provided prior express consent to receive such calls. Plaintiff’s Exhibit (“Ex.”) J at 2; Ex. A at 27:1–7, 29:20–23. Defendant also does not train its employees with respect to the TCPA, nor does it have a training manual regarding compliance with the TCPA. Plaintiff’s Ex. A at 56:18–22. And even the examples defendant proffers—chiefly consisting of patients providing a medical office with a telephone number, in a context wholly divorced from debt col-lection—do not appear to be tantamount to even implied consent to be robo-called by a third party about one’s debt. ¶ Moreover, even if defendant had kept adequate records or could otherwise show that a substantial part of the putative class had given such consent to the underlying creditors, this Court agrees with the Mais Court that “[t]he FCC’s construction is inconsistent with the statute’s plain language because it impermissibly amends the TCPA to provide an exception for ‘prior express or implied consent’ “ and that “Congress could have written the statute that way, but it didn’t. And because it didn’t, the FCC’s contrary construction is not entitled to deference.” Mais, 944 F.Supp.2d at 1238–29 (emphasis in the original). ¶ Third, defendant’s other arguments can be quickly dispensed with. Defendant’s argument that plaintiff lacks standing under the TCPA because he suffered no harm and cannot establish that he was the “called party” under the TCPA is contradicted by the statute itself; for under the TCPA, the “called party” is the subscriber assigned the cell phone number at the time the allegedly improper calls are made, and the called party has standing to bring suit for a violation of the TCPA even if he has not suffered actual harm. See, e.g., Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 639–40 (7th Cir.2012); Leyse v. Bank of America, Nat. Ass’n, 2010 WL 2382400, at *3–4 (S.D.N.Y. June 14, 2010). As for defendant’s argument that plaintiff’s “willfulness” claim is inappropriate for class resolution because it requires a finding of whether the defendant acted willfully with respect to each proposed class member, there is no indication that the defendant acted differently with respect to different proposed class members, and the “willfulness” claim will therefore depend on defendant’s general practices and procedures, or lack thereof, which is entirely suitable for class determination. Finally, defendant’s argument that its potential liability to the class would be completely out of proportion to any harm suffered by the lead plaintiff provides is no reason to deny class certification, since it is the class, and each eligible member thereof, who will recover if defendant has in fact injured the class. Furthermore, any excessive damages award can easily be reduced after trial, and should have limited bearing on certification. See, e.g., Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir.2006). ¶ The Court has considered all other elements of class certification and all defendant’s arguments re-lated thereto, and having done so, grants plaintiff’s motion for class certification.