District Court (Cal.) Says Ascertainability Not an Issue after Briseno; But Declines to Certify TCPA Class Because Plaintiff Was Not a Member of the Class She Sought to Certify

In Del Valle v. Global Exchange Vacation Club, 2017 WL 433998, at *2–3 (C.D.Cal., 2017), Judge Carter declined to certify a TCPA class action because Plaintiff was not a member of the class she sought to certify.  But, Judge Carter opined on how Briseno’s elimination of the ascertainability requirement interplays with whether a class action can be managed.

Although Rule 23 does not contain an ascertainability requirement, courts have often required that a class be ascertainable to be certified. Defendants argue that “class certification should be denied because the class cannot be currently and readily ascertainable based upon objective criteria.” Opp’n at 22. Defendants cite cases from the Second, Third, and Fifth Circuits to support their contention that Plaintiff must show the class is ascertainable in order to achieve certification. See id. But the Ninth Circuit does not have a separate ascertainability or administrative feasibility requirement. In Briseno v. ConAgra Foods, ___F.3d___, 2017 WL 24618 (9th Cir. 2017), the Ninth Circuit declined to adopt an administrative feasibility requirement. Briseno, 2017 WL 24618, at *10. The Briseno court found that Rule 23 “does not impose a freestanding administrative feasibility prerequisite to class certification” and declined to adopt any of the Third Circuit’s policy rationales. Id. at *4–*5.  Plaintiff seeks to certify a class under Rule 23(b)(3). See Mot. at 16–20. Rule 23(b)(3) provides that “the likely difficulties of managing a class action” are “pertinent” to a court’s finding that a class action may be maintained under this rule. Fed. R. Civ. P. 23(b)(3)(D); see Briseno, 2017 WL 24618 at *4 (finding a separate administrative feasibility requirement would “render [the] manageability criterion [of Rule 23(b)(3)] largely superfluous, a result that contravenes the familiar precept that a rule should be interpreted to give effect to every clause”). The Court finds that Plaintiff’s two possible methods of ascertaining the class are reasonably manageable. First, Plaintiff asserts that MSI and IVT can provide Defendants with “a report showing every call made on [Defendants’] behalf,” because their software—a program called VICIdial—is “a predictive dialer that dials lists of telephone numbers loaded into client specific ‘campaigns.’ ” Mot. at 10. This system allegedly “creates a record of every call it makes” and “generate [s] campaign reports.” Id. Plaintiffs propose that their expert, Jeffrey A. Hansen (“Hansen”), be provided with such a report, which he will then “scrub” to isolate calls made to cellular phone numbers. Id. Hansen would then compare these numbers with MSI and IVT’s “internal lead lists” to identify the contact information of each individual class member. Id. Other courts have approved a similar method in TCPA class actions. See Abdejalil v. Gen. Elec. Capital Corp., 306 F.R.D. 303 (S.D. Cal. 2015); Thrasher v. CMRE Fin. Servs., Inc., No. 14-CV-1540-BEN, 2015 WL 1138469 (S.D. Cal. Mar. 13, 2015); Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674 (S.D. Fla. 2013).   In the alternative, Plaintiff asserts that it could ascertain many class members by identifying individuals who were “actually interested in attending one of Defendants’ timeshare presentations.” Mot. at 11. Defendants possess the contact information of these individuals because MSI and IVT send the information of such people to Defendants. Id. Plaintiff would then perform a “scrub” to identify cellular phone numbers. Id.   Defendants say they are unable to determine which of MSI and IVT’s calls are related to them, because “those companies do not track telephone calls in a manner that lets them know which calls are related to [Defendants]” and MSI and IVT “are not able to obtain this information.” Opp’n at 22. Because of this, Defendants contend that “the only way to establish whether a call from MSI or IVT was related to [Defendants] … would be have every single person called by MSI and IVT separately testify as to the specific content of the phone calls.” Id. (emphasis in original). This, of course, would be very time-consuming and presumably expensive.  The Court finds it very unlikely that a company cannot obtain performance data from a contractor whose sole service is to generate customers and sales for that company. The Court will not deny class certification based on Defendants’ argument that they do not have the ability to obtain call information from MSI and IVT because those companies do not track which calls they make are “related to RVI and [GEVC].” See Opp’n at 22–23. For the reasons explained above, the Court finds that this class action is manageable enough to not bar certification of the proposed class.