In Abdeljalil v. General Elec. Capital Corp., — F.R.D. —-, 2015 WL 1346850 (S.D.Cal. 2015), Judge Houston certified a TCPA class action. Plaintiff moved for an order certifying the following class:
All persons within the United States who had or have a number assigned to a cellular telephone service, who received at least two calls using an automatic telephone dialing system and/or an artificial or prerecorded voice from Defendant or its agent between August 22, 2008 and August 22, 2012 for debt collection purposes, who were not customers of Defendant at the time of the calls, where Defendant’s customer account records indicate that prior to the second and any subsequent calls that said person were non-account holders as identified by one or more the following terms in Defendant’s electronic customer account records: “wrong number,” “wrong telephone number,” incorrect number,” “third party,” “third party number,” “third party telephone number,” “third party contact,” “wrong party,” “wrong party number,” or “wrong party telephone number.”
Plaintiff explained that the proposed class excludes persons who were called by defendant for emergency purposes or those who gave defendant their prior express consent to be called. The District Court certified the class.
Defendant maintains that plaintiff’s proposed class definition is also under-inclusive because the search terms “will not capture each non-account holder who received a second or subsequent call” from defendants since a wrong party call can be identified in many different ways other than the proposed terms. Id. For example, defendant points to the notes contained in Abdeljalil’s wife’s account which are in shorthand but contain indications that a non-account holder told defendant the number was his cell number and should not be called. Id. Thus, defendant contends “it is impossible to craft search terms that will ‘objectively’ and ‘precisely’ identify the class.” Id. In reply, plaintiff contends defendant’s over- and under-inclusive arguments fail. Doc. # 83 at 3–4. As to the over-inclusive argument, plaintiff admits that he intended to limit the class definition to calls placed by the dialer used by the identified company and, thus, seeks to modify the class definition accordingly, rendering this argument meritless. Doc. # 83 at 2–3. In regards to defendant’s under-inclusive argument, plaintiff claims the argument fails because anyone not identified by the proposed search terms would not be included in the class and thus would not be bound by any class judgment. Id. at 3. Plaintiff suggests defendant’s concern that persons identified as third parties who are actually account holders called with prior express consent can be alleviated by adding the line “ ‘[e]xcluded from the class are persons who … gave express [c]onsent’ to the class definition.” Id. (citing Knutson, 2013 WL 4774763 at *11). This Court is unconvinced that plaintiff’s proposed class definition is over-or under-conclusive such that the class is not ascertainable. Plaintiff correctly points out that defendant does not claim it would be unmanageable or unfeasible to ascertain the class. Id. This Court agrees with plaintiff that the class here is ascertainable because class members likely can be determined by objective criteria based on defendant’s business records and the class members will likely be able to identify whether they received prerecorded calls from defendant. Id. Thus, this Court finds defendant’s arguments concerning ascertainability fail.