In Brown v. DirecTV, LLC, No. CV 13-1170 DMG (Ex), 2021 U.S. Dist. LEXIS 231014, at *15-23 (C.D. Cal. Dec. 1, 2021), Judge Gee discussed how wrong number codes might impact class certification.
But that does not mean that Plaintiffs’ procedure is otherwise improper—if done in the proper sequence. The Class is defined to include only non-customers, and DirecTV has no evidence that any non-customer provided prior express consent to be called. So, if DirecTV called non-customers on their cell phones with a prerecorded message, it would be liable. The only questions outstanding would be, which non-customers [*16] were called, and how many? Those questions simply amount to ascertaining the Class Members and adding up the total damages. The Ninth Circuit has held that Rule 23 does not impose an independent requirement for an administratively feasible way to identify class members. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1133 (9th Cir. 2017); see also Walker v. Life Ins. Co. of the Sw., 953 F.3d 624, 632 (9th Cir. 2020) (“Our cases do not additionally task district courts with analyzing, for predominance purposes, the logistical difficulties attendant to identifying plaintiffs who were exposed to misrepresentations and therefore may be entitled to class membership. To the contrary, we have suggested—without mentioning predominance—that the superiority prong might best lend itself to considering that issue.”). Thus, under this Circuit’s binding precedent, no matter how laborious or imperfect the process of identifying Class Members is, it does not present a predominance issue. Here, Plaintiffs outline a method to identify Class Members that is far more targeted and objective than publication notice and a claimant’s uncorroborated affidavit. Even if wrong number codes were not used at all and notice was effectuated only by publication, the parties would still have an objective way to test a claim: check the affiant’s phone number against Plaintiffs’ lists of prerecorded cell phone calls and his or her name against DirecTV’s customer database.11 The focus of DirecTV’s objection really is Plaintiffs’ notice procedure, more so than the ultimate method to verify class membership. Plaintiffs’ use of wrong number codes as a starting point for class notice (but not for class membership)13 may be overinclusive and imperfect, but notice often is. Plaintiffs’ procedure remains superior to individual litigation where the maximum award is $1,500 per individual lawsuit. . . .Plaintiffs’ proposed claims administration procedure allows DirecTV to challenge the class membership of claimants during class administration. The fact that these challenges would arise during the claims process, as opposed to at trial, does not run afoul of Rule 23 or due process. Nor does it affect predominance or overcome the superiority of a class action.18 Accordingly, DirecTV’s MDC is DENIED.