Time Warner Cable is fighting back against a purported Telephone Consumer Protection Act wrong number class action lawsuit. In Hunter and Villa v. Time Warner Cable Inc., No. 1:15–cv–06445 (S.D.N.Y), plaintiffs Leona Hunter and Anne Marie Villa allege that defendant Time Warner Cable engages in a “practice of making unsolicited telemarketing and debt collection calls” to individuals without their prior express consent. The plaintiffs’ complaint focuses on calls that were allegedly placed to reassigned or wrong numbers, given that the individuals who received the calls had no relationship to the debt at issue.
In November 2018, the plaintiffs filed a Motion for Class Certification, seeking to certify the following wrong number class:
All individuals in the United States who received a call made by or on behalf of Defendant to the individual’s cellular or residential telephone through the use of an artificial or pre-recorded voice, from October 16, 2013 to the date that class notice is disseminated, where such person was not listed in Defendant’s records as the intended recipient of the call.
Hunter and Villa argue that each of the Rule 23(a) and 23(b)(3) requirements are met. However, Time Warner vigorously disputes that common questions of facts and law predominate. Instead, Time Warner argues that individualized issues of consent, liability, and class membership render the class noncertifiable.
In wrong number cases, common proof of consent or lack thereof often creates problems at the class certification stage. Time Warner rests its opposition to the motion for class certification on this exact issue, arguing that where a “caller obtains telephone numbers directly from its intended recipients,” the identification of subsequent absence of consent creates an individualized issue that requires mini-trials.
The plaintiffs argue that wrong number class members are identifiable through online reverse lookup services frequently used to determine to whom a telephone number is assigned at any point in time. However, Time Warner disputes that reverse lookup can properly identify the subscriber and/or customary user. For example, it argues data for pre-paid phone plans, which are held by over 100 million individuals, is generally non-existent for use in a reverse lookup database. Time Warner further argues that the plaintiffs’ proposed reverse lookup tool is not reliable for identifying the time period an individual is associated with a telephone number. Time Warner points out that under the plaintiffs’ proposed methodology for identifying wrong numbers, named plaintiff Villa is not a member of the proposed class. Time Warner also notes that the proposed reverse lookup methodology fails to address three percent of the numbers called by the cable provider during the relevant time period because the numbers are not available in the reverse lookup database. Therefore, individualized inquires as to consent for those numbers would be necessary. Finally, Time Warner points out that the plaintiffs’ name–matching methodology results in various false matches, thereby creating further individualized consent issues.
The plaintiffs have yet to file a reply in support of their motion for class certification addressing the deficiencies asserted by Time Warner Cable. Nonetheless, the parties’ class certification briefing demonstrates the multiple hurdles a plaintiff must overcome when attempting to certify a wrong number TCPA class.
We will continue to follow this case and provide an update on the Court’s class certification decision.