A federal district court in Arizona has certified a nationwide “non customer” class under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) against Citibank, N.A. TCPA class actions carry enormous potential liability, as the statute provides for recovery of $500 to $1,500 per call for unconsented autodialed or prerecorded calls to cellular telephones. The case is Head v. Citibank, N.A., No. 3:18-cv-8189 (D. Az., Jan. 28, 2022).

This decision issued after a relative lull in TCPA filings over the last year, in the wake of the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, which called into serious question whether most modern dialing equipment is regulated “automatic telephone dialing system” or “ATDS” technology under the TCPA in the first place. Leaving aside whether a company’s dialer equipment is regulated technology, however, Facebook left intact the TCPA’s prohibitions against unconsented prerecorded voice calls.

Recognizing this distinction, the plaintiff in Head gained certification of a nationwide class of non-customers called on their cellular telephones with Citibank’s “Aspect dialer and with an artificial or prerecorded voice.” (Emphasis added). Crucially, the plaintiff persuaded the court that “issues of consent do not defeat the class because class members, by definition, are non-customers of Citibank who did not consent to being robocalled.”

Of course, consent remains a complete defense to a TCPA claim. And, the ability to demonstrate lack of consent on a class-wide basis is critical to gaining class treatment in TCPA cases. Courts routinely decline to certify classes of persons called “without consent” where plaintiffs fail to come forward with a method of determining consent on a class, rather than individual, basis.

However, courts have taken divergent approaches to whether to certify purported “non-customer” or “wrong number” TCPA cases for class treatment. For example, in certifying a class, Judge Rosalyn O. Silver rejected Citibank’s arguments that “wrong number codes” are used for a variety of reasons, and do not necessarily indicate unconsented calls to non-customers. The court reasoned that even if that is so, “[i]n light of the enormous rate at which Citibank places calls to delinquent accounts, it seems virtually impossible” that Citibank has not called “at least 40” non-customers, warranting class certification. The court also agreed with the plaintiff that issues of consent would (somehow) not devolve into minitrials.

By contrast, in 2019 another court credited Citibank’s same arguments, holding that—despite some calls being coded “wrong number”—Citibank had “put forward an evidentiary basis from which to conclude that adjudicating whether or not members of the class consented to its calls lacks a common method of proof.” Revitch v. Citibank, N.A., No. 17-06907, 2019 U.S. Dist. LEXIS 72026, at *12-13 (N.D. Cal. Apr. 28, 2019).

Ultimately, whether such a case is certified as a class action depends on (1) whether the court accepts the plaintiff’s assertion that she can demonstrate lack of consent on a class-wide basis at face value; and (2) the contravening analysis advanced by defendant, including whether the defendant persuasively challenges plaintiff’s proposed methodology for showing lack of class-wide consent (such as a “reverse lookup”).

Another factor is how many times a defendant is willing to take such a case all the way through the class certification stage. Indeed, Citibank has defeated class certification in “wrong number” cases multiple times, only to now have a nationwide class action certified against it, with a class period that commenced in 2014. Of course, in Head, Citibank can continue to argue that no class should have been certified, and at the appropriate time bring a motion to decertify the class, after developing further evidence that shows the flaws in plaintiffs’ methodology for demonstrating lack of consent on a class-wide basis.

However, it’s safe to say that the high stakes of TCPA class action litigation continue and that reports of the TCPA’s death in the wake of Facebook were exaggerated.

For further questions, contact Rebecca Snavely Saelao at rss@severson.com