District Court (N.M.) Allows “Reverse-Lookup” Process for Class Notice

The Court should have just denied class cert.  But, having already certified a class, the Court had to then wrestle with a class notice with regard to an unascertainable class.  In Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-cv-00934-WJ/LF, 2019 U.S. Dist. LEXIS 37724 (D.N.M. Mar. 7, 2019), Judge Johnson ignored those errors in the process and allowed a “reverse-lookup” procedure to give class notice.

The Court finds that the proposed notice plan is the “best notice practicable under the circumstances” and provides “individual notice to all members who can be identified through reasonable effort.” Rule 23(c)(2)(B). The class consists of individuals who called in on their phones to Defendants and were coded “Bad/Wrong Number” in Defendants’ call logs, who then were called by Defendants and were noted “Bad/Wrong Number”. Customers of Defendants are excluded from the class. To identify these customers, Ms. Verkhovskaya will perform a reverse lookup and search for who was the “customary user” of the telephone number called at [*7]  the time of the call in the logs. First, Ms. Verkhovskaya will perform a reverse lookup of the Defendants call data to identify customers of those telephone numbers which were cellular phone numbers at the time of the second, outbound call. Second, Defendants will identify the name and address of the associated account numbers to exclude their customers from the class list. Finally, after customers are removed from the output, the notice will be mailed to class members. This process is similar to the one used in West v. California Service Bureau, Inc., No. 16-cv-3124 (N.D. Cal.). The Court finds that Ms. Verkhovskaya’s methods expend reasonable effort to identify class members. While there may be errors in identifying class members, Defendant has not cited to case law that indicates that is a reason to deny class notice. Although Defendants give a number of reasons why Ms. Verkhovskaya’s methods may not identify class members, they are generally speculative. Defendants arguments may be relevant to other stages of the litigation, but they are generally not something that tends to attack whether the Class Representative is giving the best notice practicable under the circumstances and [*8]  expending reasonable effort to identify class members. Defendants propose a number of scenarios where class members may not be identified, or non-class members may be sent notice inadvertently. Defendants may have valid concerns. But those concerns are generally issues for class certification (or decertification) or the claims administration process. See, e.g., Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 U.S. Dist. LEXIS 117713, 2017 WL 3206324, at *7 (M.D.N.C. July 27, 2017) (“the Court will not enter an aggregate judgment against Dish in the amount of $61 million and instead will require a claims administration process that gives Dish the opportunity to reasonably challenge individual claims to class membership.”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 665 (7th Cir. 2015) (“They can rely, as they have for decades, on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court to take into account the size of the claims, the cost of the techniques, and an empirical assessment of the likelihood of fraud or inaccuracy.”); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1132 (9th Cir. 2017) (defendants can “challenge the claims of absent class members if and when they file claims for damages” explaining that parties have “long relied on ‘claim administrators, [*9]  various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court’ to validate claims.”) Defendants do not attempt to show that some other method of notification offers a better means of notifying the class. See In re Integra Realty Res., Inc., 354 F.3d 1246, 1260 (10th Cir. 2004) (“We emphasized that the Integra I appellants had made no showing … that some better method of notification offered a practicable means of notifying the class.”). As noted above, Defendants instead argue that the class is not ascertainable. This is not a reason to deny class notice. There does not appear to be any better way of providing individual notice to class members.