Class Certification Fails Due to Individualized Issues of Consent

The Northern District of California recently denied a plaintiff’s motion for class certification after finding there was no “common method of proof” to determine which members of the class consented to Defendant’s calls. Revitch v. Citibank, N.A., No C 17-06907 WHA, 2019 WL 1903247 at *4 (N.D. Cal. Apr. 28, 2019). This decision is yet another example of how individualized issues of consent can defeat a plaintiff’s predominance requirement under Rule 23(b)(3).

Plaintiff filed a putative class action alleging Defendant Citibank violated the TCPA by calling him multiple times on his cell phone using an autodialer despite the fact that he was not a Citibank customer. Id. at *1. Plaintiff sought to certify a nationwide class of “[Plaintiff] 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 agent/s using its Aspect Unified dialer; and (4) where such person was not listed in Defendant’s records as the intended recipient of the call.” Id.

In a 9-page order issued at the end of April, the Northern District of California agreed with Citibank’s arguments that Plaintiff’s methodology to define the proposed class had “several fatal flaws” and denied Plaintiff’s motion for class certification. Id. at *2, 4. The court arrived at its holding for three primary reasons.

First, many of the phone numbers Plaintiff identified as wrong numbers “were associated with the Citibank customer that the bank was attempting to reach.” Id. at *2. For example, in one case a son provided his phone number in connection with his father’s account. Id.

Second, the data included a “first seen” date and a “last seen” date and Plaintiff’s expert only examined the “first seen” date. Id. at *3. Taking the “last seen” date into account, the majority of phone numbers that Plaintiff’s expert determined were “wrong numbers” were actually documented as having been associated with the Citibank customer at the time of the call. Id.

Third, Plaintiff sought to represent individuals who received these wrong-number calls dating back to March 2014, but Citibank only retained historical data concerning wrong-number calls until November 2017. Id.

Ultimately, the court decided that whether or not members of the class consented to Defendant’s calls lacked a “common method of proof” and would “devolve into individualized inquiries which would overwhelm the trial.” Id. at *4. Given that these individualized issues of consent would make “class certification impractical in this case,” the court denied Plaintiff’s motion for class certification. Id. at *1, 4.


Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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