On April 28, 2019, the U.S. District Court for the Northern District of California denied certification of a putative Telephone Consumer Protection Act (TCPA) class. Revitch v. Citibank, NA., No. 14-06907 WHA (N.D. Cal. Apr. 28, 2019). The court reasoned that the case would involve “individualized inquires [of prior express consent] that would overwhelm the trial.”
The lawsuit was brought by Jeremiah Revitch (Revitch) against Citibank, N.A. (Citibank). Revitch alleged that Citibank violated the cellphone provision of the TCPA, prohibiting unsolicited calls to cellphones using automatic telephone dialing systems (ATDS), 47 U.S.C. § 227(b)(1)(A)(iii). That provision, however, is not violated where the call recipient has given “prior express consent.” Id. at § 227(b)(1)(A).
Revitch—who is not a Citibank customer—claimed that he received several “wrong number” calls (i.e. calls meant for someone other than himself) from Citibank attempting to collect outstanding debts. Importantly, Revitch conceded that Citibank receives prior express consent from all of its customers such that any calls Citibank places to them would not be considered “unsolicited” and, therefore, would not violate the cellphone provision of the TCPA. According to Revitch, he continued to receive calls from Citibank, even after informing Citibank that it was calling an incorrect number. Revitch alleged that Citibank’s actions constituted negligent and intentional violations of the TCPA.
Revitch sought certification of a class consisting of non-Citibank customers who received “wrong number” calls. Specifically, Revitch sought to define the class as himself “and all persons in the United States (1) whose cellular telephone is identified in [Citibank]’s . . . [d]atabase; (2) who between March 17, 2014, through August 21, 2018; (3) were called on their cellular telephone by [Citibank] or its agent/s using its [ATDS]; and (4) where such person was not listed in [Citibank]’s records as the intended recipient of the calls.”
To identify the class, Revitch proposed a multifaceted methodology. The method first required combing through Citibank’s call records for those calls bearing a “wrong number” code. Second, these calls would be filtered to eliminate those “wrong number” calls that were later “given a flag” signifying that the call may not have been placed to a “wrong number” after all. The third step required eliminating all calls placed to a landline number. The final step required using a “lookup service” to “identify the customer user of a phone number during the time period that Citibank’s call was made.” If the name of the number’s registered user did not match the name of Citibank’s record account holder, then that user would be a “wrong number” individual part of the proposed class.
In denying certification, the Court pointed to a series of problems with this proposed methodology. First, the Court noted that many of the calls identified as “wrong numbers” under the proposed method were actually “associated with the Citibank customer that the bank was attempting to reach.” Second, the Court recognized that “a single phone number can be associated with multiple accounts owned by different people.” But under the proposed methodology, if a number was marked as “wrong” on any account, then every other call placed to that number would also be considered a “wrong number” call—even if that number was “valid for a different account or person.” In addition to these issues, and among others, the Court identified problems stemming from certain record-keeping practices resulting in the unavailability of important information.
Aside from these problems, the Court also recognized other district court cases discussing the “propriety” of certifying similar TCPA lawsuits. For example, in West v. California Services Bureau, Inc., 323 F.R.D. 295 (N.D. Cal. 2017), the district court allowed certification, accepting the idea that a reverse-lookup service could accurately identify those who had not given their prior consent to receive the calls in question. On the other hand, in Tomeo v. CitiGroup, Inc., No. 13-cv-4046, 2018 WL 4627386 (N.D. Ill. Sept. 27, 2018), the district court refused to certify a wrong number class, citing the defendant’s showing that a significant portion of proposed class members had actually consented to be called.
The Court here sided with Tomeo, noting that Citibank “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.” The Court was clear to note that the “consent issue will devolve into individualized inquiries which would overwhelm the trial.”
Although the impact of Revitch remains to be seen, TCPA defendants can look to the case for guidance in resisting class certification down the road. As cases like Tomeo and Revitch demonstrate, the individualized inquiries surrounding the issue of consent continue to be key in showing that class certification of TCPA cellphone provision claims is inappropriate; however, ascertaining the class in some courts can be an equally powerful way to defeat certification.