Federal Trade Commission

Wrong Numbers and Class Actions

Many TCPA claims involve calls erroneously directed to the wrong phone number.  For purposes of the TCPA, a wrong number is defined as a misdialed number, or a number that belongs to someone other than the intended recipient of the call.  While mistakes can and do occur, of particular concern is whether wrong number calls can support a multimillion dollar class action lawsuit.

Class Action Primer
In a class action the plaintiff’s attorney is technically filing suit not just on behalf of the named plaintiff, but on behalf of all consumers who were harmed by the same defendant under similar circumstances.  The group of consumers on whose behalf the suit is filed is known as a “class,” and at some point in the litigation, the plaintiff’s attorney must file a motion requesting the Court to certify the class; essentially confirming that it does exist and that the plaintiff’s attorney is capable of representing it.

Among other requirements, to obtain certification the plaintiff’s attorney must demonstrate that the representative plaintiff’s claims meet the following standards:

  • Typicality:  The plaintiff’s claims are typical of the claims of the other class members in that they were generated under substantially similar circumstances.
  • Numerosity: There are so many consumers with identical claims that litigating each one on an individual basis would be impractical.

So the question is, can a class comprised of wrong-number call recipients meet the typicality and numerosity requirements for class certification? A recent decision by a federal district court in Illinois addressed that very issue.

Abdallah v. FedEx Corporate Services
In Abdallah v. FedEx Corporate ServicesInc., FedEx mistakenly called the representative plaintiff multiple times.  As a large, successful company with deep pockets, FedEx is a prime class action target, so Abdallah’s attorney filed suit as a putative class action, and litigated the case to the certification stage.

In ruling on class certification, the Court examined whether a class of wrong number call recipients could be determined.  On the issue of typicality, the Court found that Abdallah’s claims arose from a specific course of conduct that resulted in the erroneous calls. However, the plaintiff was unable to offer any proof that anyone else who might have been mistakenly contacted by FedEx were called under similar circumstances as he was. Simply put, his claims were too specificto qualify as typical of an entire class of plaintiffs.

The Court also found that Abdallah lacked sufficient proof to meet the numerosity requirement, because he could not demonstrate how many people received similar “wrong number” calls from FedEx.  Unlike most companies, FedEx maintained records of wrong number calls, but even armed with this information the plaintiff was unable to locate any evidence supporting the number of potential class members who were erroneously called by FedEx under the same circumstances as he was.

What Does This Mean to You?
From a practical standpoint, it is extremely difficult for prospective class action plaintiffs to obtain evidence sufficient to demonstrate the level of numerosity and typicality that is required to certify a class.

The Abdallah decision demonstrates the importance of individual fact patterns as they apply to class certification as a whole, and “wrong number” class certification in particular.  Wrong number calls result from a bewildering variety of causes- they can happen after a consumer mistypes a digit into an online form, or an employee makes a data entry error, or they could be the result of a random software glitch.

Compounding the difficulties inherent in wrong number cases is the fact that there exists no legal requirement for companies to maintain records of calls they erroneously placed to wrong numbers.  In the SMS context, senders are rarely made aware that they contacted the wrong number, as consumer responses to such messages are often treated like any other opt-out request.  No records means no evidence, and no evidence means no class.

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