In Davis v. AT&T Corp., 2017 WL 1155350, at *3–4 (S.D.Cal., 2017), the District Court denied class certification in a TCPA case. The Court that Plaintiff’s efforts to change the class definition during the certification proceedings was not permitted.
This proposed class is not simply a narrower version of that proposed in the Complaints. It is an entirely different class. . . .The amended proposed class added a new condition, namely that the class members be “past or present members of Nutrisystem, Inc.” Id. Like the Abdeljalil court, the Knutson court found the amended proposed class was “more limited” than that proposed in the complaint. Id. As explained above, the facts of this case do not fit that rationale. Furthermore, at oral argument defense counsel explained the class proposed in Plaintiff’s Complaints would be non-existent as Defendant does not obtain any numbers through skip-tracing. On this basis, Defendant argued it was impossible for Plaintiff’s amended proposed class to be narrower than the class of zero proposed in the Complaints. Although Defendant did not present any evidence to support this argument, Plaintiff did not dispute it, and the logic is infallible. If the class proposed in the Complaints would have had zero members, then the amended proposed class could not have been narrower than a class of zero.
The Court also found that individual issues predominated.
A search of Defendant’s records also will not reveal whether the call recipients who claimed “wrong number” were customers of Defendant who gave their prior express consent to be called. Plaintiff argues his expert could “[c]onduct a reverse number lookup to determine who these numbers belonged to at the time of the calls[,]” (Reply at 11), but he fails to explain how the results of that search will be determinative of consent or lack thereof. Even if Defendant made a call to a person who was not a customer at the time of the call, that would not eliminate the need for an individualized inquiry to determine whether that person was a past customer and thus, had previously provided consent to be called. In those circumstances, Defendant can continue to make automated and/or prerecorded voice collection calls to former customers who have amounts owing. See Van Patten v. Vertical Fitness Group, LLC 22 F. Supp. 2d 1069, 1077-78 (S.D. Cal. 2014) (cancellation of gym membership did not terminate consent). Likewise, if Defendant’s customer provided a number belonging to another person, such as a spouse or other family member, an inquiry into that customer’s authority to provide consent to call that number would be required. See, e.g., Gutierrez v. Barclays Group, No. 10cv1012-DMS (BGS), 2011 U.S. District. LEXIS 12546, at *8-9 (S.D. Cal. Feb. 9, 2011) (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)) (husband can provide consent for subscriber wife, if he “ ‘possessed common authority over or other sufficient relationship to the’ ” phone). In sum, a complete analysis of the customer status issue would require an inquiry into each call recipient’s individual circumstances. Plaintiff fails to explain how these individualized inquiries could be performed via class-wide proof, and thus fails to show that common issues would predominate over individualized inquiries. See True Health Chiropractic, Inc. v. McKesson Corp., No. 13cv02219-HSG, 2016 U.S. Dist. LEXIS 111657, at *13-14 (N.D. Cal. Aug. 22, 2016) (finding predominance requirement not satisfied where plaintiffs failed to “offer[ ] their own satisfactory method of establishing a lack of ‘express permission’ via class-wide proof.”); Shelby v. LVNV Funding, LLC, No. 13cv1383-BAS(BLM), 2016 U. S. Dist. LEXIS 83940, at *31-36 (S.D. Cal. June 22, 2016) (finding predominance requirement not satisfied where “individualized inquiries will be necessary to determine whether particular class members gave prior express consent.”)