Providing a lesson in the importance of good recordkeeping, Chief District Judge William P. Johnson of the District of New Mexico granted a plaintiff’s motion for class certification in a putative Telephone Consumer Protection Act (TCPA) class action against two financial services entities, based in part on the defendant’s own records of calls to “Bad/Wrong Number.” That case is LaVigne v. First Community Bancshares, Inc., et al.
Plaintiff Janine LaVigne alleged that after she acquired her cellphone number, she received repeated calls from an automatic telephone dialing system (ATDS) in reference to an overdrawn bank account. Despite the fact that LaVigne was not a customer of Defendant First Community Bancshares or its subsidiary, Defendant First National Bank Texas—and that she called to explain that the bank was calling the wrong person—she claimed the bank’s third-party debt collector, nonparty GC Services, continued to call her phone number.
After the plaintiff called in to complain, GC Services updated its call log to indicate that the number used to call LaVigne was a “Bad/Wrong Number.” An analysis of the log identified a staggering 37,219 cellphone numbers that were coded as “Bad/Wrong Number” but were subsequently called again by the defendants anyway.
LaVigne filed a motion to certify a class of “[a]ll persons who, since November 11, 2012, (1) called First National Bank Texas and First Community Bancshares, Inc., through their vendor GC Services, and such call was coded ‘Bad/Wrong Number’ and (2) were subsequently called again by First National Bank Texas and First Community Bancshares, Inc. on their cellular telephones through their vendor GC Services with an automatic telephone dialing system and such call was again coded as ‘Bad/Wrong Number.’”
As customers of the bank sign deposit agreements that provide consent to receive calls from the defendants placed through an ATDS, the plaintiff proposed to weed out any customers from the class by referring to the defendants’ business records.
A representative from GC Services testified that an incoming call coded as “Bad/Wrong Number” means that “somebody’s saying it’s not them that we’re dialing,” and elaborated in an affidavit that there are numerous other reasons why a call could be coded as “Bad/Wrong Number.”
Working his way through the requirements of Federal Rule of Civil Procedure 23(a), Judge Johnson found that LaVigne satisfied numerosity with the records of the call log, “even if only a fraction” of the numbers are in fact class members. As for commonality, the court found a number of common questions of law or fact.
In addition to whether GC Services’ program constitutes an ATDS, whether the defendants were on notice that they were directing their vendor to call persons without the consent of those individuals, whether the defendants’ conduct was knowing and/or willful, and whether the class suffered the same injury were issues common to all class members.
As to whether the class could be identified, Judge Johnson wrote: “Plaintiff has devised a methodology which appears to (1) weed out customers of the bank (those who consented to being called), and (2) identifies individuals who called in and were coded as ‘Bad/Wrong Number,’ yet were called again,” the court wrote. “Because of the narrowly tailored class definition, the factual situation for all class members appears to be the same. The same evidence, Defendants’ own records, will provide common answers to legal and factual questions related to consent issues for all class members.”
Typicality and representation requirements were also met by LaVigne’s proposed class, the court found.
Turning to FRCP 23(b), Judge Johnson again found the plaintiff satisfied all requirements. With regard to ascertainability, the court pointed out that the defendants did not object to the plaintiff’s methodology to weed out customers from the class definition and rejected the argument that a call could be coded “Bad/Wrong Number” for many reasons unrelated to the fact that a third party was called.
“Defendants’ theory conflicts with their representatives’ own testimony,” the court wrote. “Most of the alternative reasons for coding a call as ‘Bad/Wrong Number’ apply to customers or to outbound calls—not here. Thus, whether a call log record for an inbound call of ‘Bad/Wrong Number’ is sufficient to impart express notice to Defendants that they were calling the wrong party is a class-wide issue. Defendants’ assertion that non-customers called in for some reason other than notifying Defendants that they were calling the wrong person defies common sense.”
With the addition of one sentence to the class definition (“Excluded are customers of First National Bank or First Community Bancshares, Inc.”) the court granted the plaintiff’s motion for class certification.
To read the memorandum opinion and order in LaVigne v. First Community Bancshares, Inc., click here.
Why it matters: Using the defendants’ own coding system against them, the plaintiff was able to persuade the court that certification was appropriate based on calls to numbers coded as “Bad/Wrong Number” in the banks’ vendor’s call log. As a practical matter, it shows that companies need to have a system to not only identify bad/wrong numbers, but also to have measures in place to stop calls to such numbers.