A California federal court judge refused to certify a class of plaintiffs in a Telephone Consumer Protection Act (TCPA) lawsuit against Citibank, determining that individualized issues of consent would predominate in a case where the class definition excluded the plaintiff himself.
Jeremiah Revitch filed a putative class action in December 2017, alleging the national bank called him multiple times on his cellphone using an autodialer despite the fact he was not a Citibank customer, in violation of the TCPA. Revitch alleged that he continued to receive calls even after he told the bank that it had reached a wrong number.
Revitch filed a motion to certify a class comprised of individuals who received calls from Citibank about someone else’s account. The plaintiff proposed to define the class as “Jeremiah Revitch and all persons in the United States (1) whose cellular telephone is identified in Defendant’s Contact Utilities Database; (2) who between March 17, 2014, through August 21, 2018; (3) were called on their cellular telephone by Defendant or its agents using its Aspect Unified dialer; and (4) where such person was not listed in Defendant’s records as the intended recipient of the calls.”
Citibank objected, arguing that individualized issues of consent outweighed class issues. U.S. District Judge William Alsup agreed, denying the motion for class certification. He began with a review of the bank’s calling program and the plaintiff’s proposal for finding class members.
Account holders provide their phone numbers to Citibank in various ways, including through applications, online or during calls. For each customer account, the bank maintains various records, including customer service notes, collection notes and customer contact information.
When an account goes delinquent, Citibank calls the account holder at the number listed in its records, using a system that flags phone numbers with various codes such as “bad number” or “not valid.” Only beginning in November 2017 did the bank begin to track the historical data associated with these consent codes.
A phone number can be flagged as “wrong” in Citibank’s system even when it actually is the customer’s correct number, the bank noted, which occurs with some frequency when evasive customers try to avoid calls about a delinquent account.
To account for this issue, Revitch proposed using data from TransUnion to conduct a “reverse lookup” by identifying from Citibank’s records a phone number flagged as a “wrong number,” filtering out any numbers that were later flagged after the customer said something to the contrary, and then using the reverse lookup data to exclude calls made to landline numbers and to identify the customer user of the number during the time period the calls were received.
Where the name of the user identified from the reverse lookup service does not match the name of the account holder listed in Citibank’s records, then a true “wrong number” has been confirmed, the plaintiff told the court, and a class member identified.
But the court found multiple problems with this methodology. The plaintiff ran a sample set of 20,000 numbers and found 176 “wrong numbers.” When the bank reviewed the underlying account data associated with those phone numbers, it found that many were associated with the Citibank customer the bank was trying to reach, the court said.
The plaintiff’s plan also conflicted with the fact that a single phone number can be associated with multiple accounts owned by different people. If a number is marked “wrong” on any of these accounts, however, Revitch’s methodology considered every future call to that number “wrong” regardless of which account was called and despite the fact that a phone number may be “wrong” for one account or person but valid for a different account or person, the court explained.
Judge Alsup also expressed concern about the use of the reverse lookup data. Although TransUnion’s data includes “first seen” and “last seen” dates, the plaintiff’s expert did not account for the “last seen” date, which indicates the last documentation of an association between the name and number. Applying the “last seen” date, Citibank’s expert found that 120 of the numbers identified by the plaintiff were actually documented as having been associated with the Citibank customer at the time of the call.
A final problem involved the class definition, which dated back to March 2014 although the bank did not retain historical data about changes to wrong-number designations until November 2017. Prior to that date, a review of records as varied as call logs, call recordings and other account-level information would be required to determine class membership, the court said, and “[u]nfortunately for plaintiff, the format of this data is simply unamenable to an automated review.”
“In light of this problem plaintiff is forced to propose a class definition that expressly includes himself,” Judge Alsup wrote, as the class definition states “Jeremiah Revitch and all persons.”
Although the parties seemed to agree that the plaintiff received a wrong number call, “the only way to prove this at trial would be through individualized account data and testimony,” the court said. “To be sure, this evidence would show that plaintiff’s phone number was mistakenly provided to Citibank by its customer.”
The bank called the number when the account went delinquent; during the fifth call, Citibank marked the number as “wrong” and then reached the customer on another number. When the customer agreed to pay the debt, the bank operator switched the consent flag from “wrong number” to “verbal do not call” as a result.
“Accordingly, even if the data upon which plaintiff’s methodology relies documented this pre-November 2017 change in consent codes (which it does not), the code change from ‘wrong’ to ‘no consent’ would nevertheless exclude plaintiff as a class member,” the court wrote, requiring him to explicitly add his name to the class definition.
“Citibank has 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,” Judge Alsup concluded, denying the motion to certify the proposed class. “The undersigned judge remains convinced that the consent issue will devolve into individualized inquiries which would overwhelm the trial.”
To read the order in Revitch v. Citibank, click here.
Why it matters: District courts are split on the propriety of class certification in similar “wrong number” TCPA actions, the California federal court noted. While some courts have granted certification, finding the use of the reverse number lookup service to resolve discrepancies in the defendant’s records to be persuasive, others have not. Following the latter line of cases, Judge Alsup denied the plaintiff’s motion for class certification.
