In Bank v. Icot Holdings, No. 18-CV-02554 (AMD)(PK), 2023 U.S. Dist. LEXIS 676, at *15-19 (E.D.N.Y. Jan. 1, 2023), Judge Kuo denied class certification in a TCPA class based on ascertainability grounds.  The Plaintiff’s claim sounded as a “customary user” of a cell phone for which his mother was the subscriber and had been a member of a previous class action.

Membership in the Proposed Classes is limited to “persons to whose . . . telephone number” calls were placed. If this term is defined as the subscriber of the telephone number, Plaintiff would not be a member, because he was not a subscriber of the telephone number on which he received the First and Second Telephone Calls. In that case, Plaintiff would not have standing to bring this class action lawsuit and would not be an adequate class representative. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 594-95, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) (“Representatives must be part of the class and possess the same interest and suffer the same injury as the class members.”); Sosna v. Iowa, 419 U.S. 393, 403, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975) (“A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court.” (citation omitted)); Spagnola v. Chubb Corp., 264 F.R.D. 76, 96 (S.D.N.Y. 2010) (suggesting that to serve as an adequate class representative, a plaintiff must be a member of the class that he seeks to represent); see also Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000) (“We conclude that the district court properly found Baffa lacked standing because he was not a member of the class.”).  Plaintiff urges a broader definition for who can be a member, to include not only subscribers of the telephone numbers called, but also any “non-subscriber customary user” of the numbers. (See Pl. Reply Mem. of Law at 9.) He suggests that the Proposed Classes include any individual, such as himself, who is a frequent user of a telephone number based on the amount of time he uses the phone and his authority to answer it. (See id. at 6-9.) Plaintiff states that he “spend[s] what [he] consider[s] a large or hefty amount of time at [his mother’s] residence,” “sleep[s] over on a regular basis, not a majority of nights but a sizable minority,” and “us[es] her telephone in a varying fashion.” (Id. at 8 (citing Bank Tr. 16:2-10, 7:12-17).) Plaintiff asserts that his description of who qualifies as a member of the Proposed Classes is consistent with the definition of “called party” in the TCPA. (See id. at 6-8.) The TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice . . . without the prior express consent of the called party . . . .” 47 U.S.C. § 227(b)(1)(B). The statute does not contain a definition of the term “called party.” The FCC has defined “called party” as “the subscriber, i.e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan.” Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling & Order No. 15-72, 30 FCC Rcd. 7961 ¶ 73 (F.C.C. July 10, 2015). It does so in the context of determining whether a current or previous subscriber to a wireless telephone number can consent to receiving calls on that number once it has been reassigned. (Id.) The FCC ruling further provides that a “called party” includes “individuals who might not be the subscriber, but who, due to their relationship to the subscriber, are the number’s customary user and can provide prior express consent for the call.” Id. at ¶ 75. As an example, it gives “a close relative on a subscriber’s family calling plan or an employee on a company’s business calling plan.” Id. Plaintiff cites Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) for the proposition that “called party” means “the person who pays the bills or needs the line in order to receive other calls.” (Pl. Reply Mem. of Law at 5 (emphasis in original).) The Court in Soppet, however, held that, in deciding whether “called party” referred to a cellphone number’s previous or current subscriber, “‘called party’ in § 227(b)(1) means the person subscribing to the called number at the time the call is made.” 679 F.3d at 643. While the Court noted in dicta that the TCPA sometimes appears to use the term “called party” to refer to the person who answered the phone, see id. at 640, the Court did not incorporate that observation into its holding. It is not necessary to decide here whether Plaintiff’s description of who constitutes a “called party” is correct. For purposes of this Motion, I accept, arguendo, Plaintiff’s expansive definition of the Proposed Classes to include non-subscriber customary users, in order to examine whether membership in those classes, thus defined, is ascertainable.

Judge Kuo found the class to be non-ascertainable.

Plaintiff argues that the requirement of ascertainability has been met as to all the Proposed Classes because “the call records that Prospects [DM] produced list each telephone number that was called.” (Pl. Mem. of Law at 17.) He further argues that the New York Class can be ascertained by identifying all telephone numbers with New York State area codes contained in the call records. (Pl. Reply Mem. of Law at 23.) The Prospects DM Records contain a list of telephone calls made between January 2, 2017 and April 9, 2020, with 186,072 calls made in 2019 and 2020. (Grant May 2021 Decl. ¶¶ 3, 6.) While it might be possible to match the telephone numbers on that list with a list of names to identify the subscribers of those numbers, Plaintiff’s definition requires more than that. In order to ascertain the identities of people like Plaintiff—who were not subscribers of the telephone numbers but claim some other basis for joining the class—a different methodology would have to be used. Plaintiff fails to propose a workable methodology. In addressing the potential of double- or triple-counting members in a household where multiple people have access to a landline, Plaintiff suggested that it should be left to the relevant individuals to determine who among them received the telephone call. Positing a hypothetical household with multiple family members, Plaintiff stated, “it might well be that Jane Smith answered [the telephone]. It might be that John answered it or one of the children, and it might be that there was just a voicemail or something like that where no one actually answered it . . . . [I]f there’s a claim that’s made, . . . [and] the settlement payment is made out to Jane Doe, if her husband or one of her kids wants to say hey, I was the one who answered the phone, that money should go to me, you know, that will be for them to work out.” (See Apr. 2021 Tr. 21:13-24:20.) However, Plaintiff’s approach only resolves the question of who ultimately collects the damages, not who should be named as a class member. And it adds a subjective element to a process that should contain only objective criteria. Ultimately, Plaintiff’s description of who can qualify as a class member renders the Proposed Classes unascertainable by muddying the seemingly objective criteria by which membership in the classes can be determined.  In Leyse, the plaintiff sought to certify a class “of ‘all persons to whose residential telephone lines [the defendant] or a third party acting on its behalf initiated’ the challenged prerecorded message.” 679 F. App’x at 47 (alteration in original). Because no list of the called numbers existed, the plaintiff proposed that potential class members be identified “by soliciting individual affidavits certifying receipt of the prerecorded call accompanied by telephone bills showing subscription to New York City residential telephone service . . . .” Id. The district court found that the proposed class was unascertainable because “(1) no list of the called numbers existed, (2) no such list was likely to emerge; and (3) . . . proposed class members could not ‘realistically be expected to recall a brief phone call received six years ago or . . . to retain any concrete documentation’ of such receipt.” Id. (quoting Leyse v. Lifetime Ent. Servs., No. 13-CV-5794 (AKH), 2015 WL 5837897, at *5 (S.D.N.Y. Sept. 22, 2015), aff’d sub nom. Leyse, 679 F. App’x 44). The Court of Appeals affirmed the district court’s denial of the plaintiff’s motion to certify a class, finding that the plaintiff “had failed to show a sufficiently reliable method for identifying the proposed class to avoid ‘mini-hearing[s] on the merits of each case.'” Id. (quoting Brecher, 806 F.3d at 25) (alteration in original). It further noted that any records supplementing the individual affidavits would only show subscription “to residential telephone service, not the receipt of particular calls.” Id. In the instant case, although the Prospects DM Records contain a list of telephone numbers dialed, there is no list that can identify the persons whose telephone numbers received calls based on the criteria Plaintiff has enumerated. Plaintiff’s description of the Proposed Classes would include “non-subscriber customary users” of a landline who are not linked to the telephone number as a subscriber or part of a family or business calling plan. Plaintiff has offered no method for obtaining this information, let alone one that is reliable, and no such list is likely to emerge. As Plaintiff acknowledges, “There’s never going to be a situation where there will be any kind of record of every single person who answers the phone.” (Apr. 2021 Tr. 21:14-17.) Without records of who answered the calls, it would not be possible to identify those who qualify as non-subscriber class members. As in Leyse, potential members would be expected to remember telephone calls received years ago in order to self-identify as members. Moreover, if the Proposed Classes were to be certified as Plaintiff describes, the Court would be forced to conduct a mini-hearing for each potential class member to determine whether the amount of time that person used the telephone or spent at the address associated with the telephone number would qualify that individual as a customary user. There are no objective criteria to determine the number of hours or the kind of permission that would suffice for someone to be permitted to join one of the Proposed Classes. Accordingly, I find that the Proposed Classes as defined by Plaintiff are unascertainable and, therefore, cannot be certified. Because the Proposed Classes are unascertainable, it is not necessary to determine whether Plaintiff has met all the other requirements to certify a class under Rule 23.

Bank v. Icot Holdings, No. 18-CV-02554 (AMD)(PK), 2023 U.S. Dist. LEXIS 676, at *20-24 (E.D.N.Y. Jan. 1, 2023)