Blog LenderLaw Watch November 05, 2019

Court Denies Class Cert in TCPA Case

On October 23, 2019, the District of Massachusetts denied class certification in a Telephone Consumer Protection Act (TCPA) case in Sandoe v. Boston Scientific Corp. (No. 18-11826).  The court held that the plaintiff could not identify class members sufficiently to satisfy the ascertainability and predominance requirements of Fed. R. Civ. P. 23(b)(3).

The suit arises from clinics held by Boston Scientific from 2014 to 2018 to educate patients about treatment options for chronic pain management.  In connection with the clinics, Boston Scientific made pre-recorded calls to telephone numbers that they believed belonged to patients, inviting them to attend the clinics.  The plaintiff claims that Boston Scientific is liable under the TCPA because it dialed wrong numbers—i.e. telephone numbers on the “do not call list” that Boston Scientific incorrectly thought were assigned to patients who had consented to receive such calls—in connection with its solicitation of potential clinic attendees.

At issue at the class certification stage was whether, given that telephone numbers are frequently reassigned from one person or another, class members could be readily identified.  To do so, the plaintiff’s expert used a proprietary algorithm to link names and addresses to the phone numbers that Boston Scientific called.  As part of her methodology, the expert applied a six-month “fuzzy” period, through which the expert assumed that a class member received a call if their name was associated with the call within that six-month period.  Boston Scientific claimed that the expert’s methodology could not reliably identify class members with any degree of certainty, and the court agreed.

Rule 23(b)(3) requires that there be a reasonable and workable plan to prove class membership, without having to engage in individual “mini-trials” to see if individuals are part of the class.  The court concluded that the plaintiff’s expert’s methodology was inadequate for two main reasons.  First, the court found that the plaintiff’s use of a “fuzzy” period was unexplained and applied inconsistently throughout the expert report.  Indeed, the court noted that absent use of the “fuzzy” period, the named plaintiff’s individual testimony, and an analysis of the named plaintiff’s call records, the named plaintiff himself could not be identified as a class member.

Second, the court, noting that consent is a defense to a TCPA action, held that individualized issues predominated because each class member would need to testify about whether they consented to receive telephone calls from Boston Scientific.  The plaintiff argued that any misidentification of a telephone number could be overcome by submitting affidavits from proposed class members, stating that the number belonged to the class member at the time Boston Scientific made the call to them.  However, the court rejected this approach.  Because Boston Scientific would be entitled to cross examine each proposed class member on the issue of consent, requiring “mini-trials” to determine whether each class member consented to receive the call, individual issues would predominate over issues common to the class.  In reaching this conclusion, the court distinguished the facts of this case—where the intended recipients of the call unquestionably consented to receive calls—to cases involving random robocalls, in which consent is not an issue.

The Sandoe case demonstrates that plaintiffs must overcome real hurdles to certify a class under the TCPA, and that class certification is no sure thing.  LenderLaw Watch will continue to monitor TCPA developments, and bring you the latest as it comes.