Judge Denies Certification in TCPA Suit Because Plaintiff Could Not Be Identified As Potential Class Member

A federal judge in Florida has denied certification of a potential class-action lawsuit after a furniture store was accused of violating the Telephone Consumer Protection Act by making calls to an individual’s cell phone without consent because the process used by the plaintiff’s expert to determine the size of the class would not have discovered the plaintiff as a potential class member.

A copy of the ruling in Wilson v. Badcock Home Furniture can be accessed by clicking here.

The plaintiff was the user of a phone in which the account was in the name of her grandmother. The defendant placed more than 30 calls to the defendant, leaving pre-recorded messages on 12 of those attempts. The plaintiff did end up picking up the phone on a call from the defendant and advised the caller that the number was wrong and the customer the defendant was trying to reach was not at that number. The plaintiff subsequently filed suit, alleging the defendant violated the TCPA by using an automatic telephone dialing system to contact her cell phone without her consent. The suit sought to include anyone who had received a similar call to a wrong number placed by the defendant.

In denying the motion to certify the class, the judge ruled that the size of the class was not ascertainable and the issues of law and fact do not predominate.

While an analysis conducted by the plaintiff revealed that the defendant had placed 8,253 calls that were marked as wrong numbers to 7,705 different numbers, it would be impossible to identify the subscribers of the wrong numbers because such a database does not exist. As well, because the subscriber of the plaintiff’s phone was her grandmother, if such a database did exist, the plaintiff’s name would not be ascertainable.

As well, based on evidence provided by the defendant, there were documents instances where multiple people provided the same phone number, which means that a call that was placed to contact one individual may have been recorded as a wrong number, even though someone may have provided consent to be contacted at that number.

The judge also indicated that it is possible that some people, especially those who are behind in their bills, may have misled the defendant by saying the number was a wrong number when in fact it wasn’t.

Yet it is quite likely that a defaulting customer may reply with “wrong number” when the customer answers a call from the creditor collecting a past-due debt. Or someone in the customer’s household might intentionally mislead the caller on behalf of the defaulting customer. The call’s recipient might also be bound by a customer’s consent, like if a household member used the recipient’s number to make a purchase