District Court (Cal.) Certifies TCPA Skip-Trace Class

Plaintiff contends that prior express consent is not an individualized issue in this case, because the proposed Class is comprised only of individuals who were skip traced, or for whom Defendant did not have a valid phone number on record. (See Wollman Dep. at 75:22-78:14). As evidence of the individuals who were skip traced, Plaintiff provides Defendant’s account records, which indicate a disposition code of “WFBP” and “Created skiptrace” whenever an individual’s number was skip traced and called thereafter by Defendant. (Wollman Dep. at 42:20–46:19; Friedman Decl. Ex. B and E.)   Defendant argues that the notations “WFBP” and “Created skiptrace” in the account records only indicate whether a skip trace was performed, not whether the individual gave prior consent to be called at that number. According to Defendant, the “WFBP” disposition code is used for a variety of reasons, e.g., wrong phone number, disconnected call, data entry error. (Flynn Decl. ¶ 17, Ex. B [Wollman Dep.] 90:15-91:8.) Thus, Defendant argues that a skip trace might result in a call to a debtor who voluntarily provided their number, and for whom Defendant obtained consent to call. However, Defendant submits no evidence that any class member in this case consented. “Where a party has not submitted any evidence of … express consent, courts will not presume that resolving such issues requires individualized inquiries.” Bee, Denning, Inc. v. Capital All. Grp., 310 F.R.D. 614, 629 (S.D. Cal. 2015); see also Van Patten, 847 F.3d at 1044 (finding that express consent is “an affirmative defense for which the defendant bears the burden of proof.”).   Defendant also fails to demonstrate that any individual class member lacks standing to sue. See Van Patten, 847 F.3d at 1042-43 (“a violation of the TCPA is a concrete, de facto injury.”)  Accordingly, there is no indication that individualized issues of consent would be an obstacle to managing this case as a class action.