Even in well-tended yards, weeds can emerge. Wrong numbers are the weeds of a well-tended TCPA compliance program. Notwithstanding your best efforts to cultivate and grow communications campaigns rooted in consumer consent, calls to wrong numbers are often inevitable. Numbers change hands after you receive consent to call that number. Professional plaintiffs bait you into calling them. And, particularly in debt-collection calls, you may be calling the right person, but your agent is told they have the ‘wrong number’ when they realize why they’re being called.
So while wrong-number TCPA cases are not uncommon, they should not expose us to TCPA class action liability (that’s not to say the plaintiffs’ bar won’t try). In Wilson v. Badcock Home Furniture, the U.S. District Court for the Middle District of Florida just issued an excellent opinion highlighting the key reasons why that is so. In Badcock, a consumer purchased some furniture on credit, but fell behind on their payments several years later. So Badcock made over 30 calls—not to the consumer who gave it consent to call, but rather to that phone number’s subsequent user, Plaintiff Ms. Wilson, who was using that phone number under a plan that her grandmother subscribed to. Ms. Wilson finally answered a call from Badcock to tell them they had the wrong number; but she had already filed her TCPA complaint two days earlier.
The plaintiff moved the court to certify a class of persons Badcock called for whom it had the wrong number, but the trial court denied the motion. The first flaw in plaintiff’s theory was that the class was even ‘ascertainable,’ one of the required elements of class certification. Plaintiff’s expert witness opined that she could do a reverse number look-up, but the court quickly saw the flaws in that approach. For one, all you learn, at best, is the subscriber’s name. Here, that would get you grandma, not the plaintiff. So you can subpoena the carrier all you want, and if the user of the phone number isn’t the subscriber of record, this method will not produce accurate results.
The second defect in this approach is the ‘multiple-hit’ problem. Two different consumers can provide the same phone number, and the company’s records may indicate that it is a ‘wrong number’ for one of those consumers. In this scenario, “a call to an otherwise consenting customer might be designated as ‘wrong number’ simply because Defendant had intended to call–and asked for—the other customer who provided the number.” And here Badcock produced examples of that very scenario, where an otherwise legitimate call was designated as ‘wrong number’ simply because they asked for the other user of the number, who had also consented to the calls.
The plaintiff argued that these issues could be overcome by simply asking the consumers through the claims-administration process. The court saw through the practical and constitutional pitfalls of that approach too. First, allowing potential claimants to simply self-report raises individualized issues of consent that makes class certification improper. Second, it raises insurmountable Due Process concerns. Here, this plaintiff would have been entitled to recover up to $45,000 for those 30 calls, and the process leaves the defendant vulnerable to the moral hazard of those too tempted by trading their signature for such a windfall. Third and finally, the system is built on evidence that is often inadmissible. The called party’s statement about a wrong number is often inadmissible hearsay.
This court rightly articulated why wrong-number TCPA cases should not be certified as class actions. Individualized issues of consent, and attendant Due Process concerns, demand that these types of TCPA cases be litigated solely on an individual basis.
By Joe Bowser