The Western District of Washington recently adopted a “preponderance of the evidence” standard for establishing the prerequisites of Federal Rule of Civil Procedure 23 which governs class actions, and denied class certification in a Telephone Consumer Protection Act (“TCPA”) case.  See Southwell v. Mortgage Investors Corp. of Ohio, No. 13-1289, 2014 U.S. Dist. LEXIS 112362 (W.D. Wash. Aug. 12, 2014).  In Southwell, plaintiffs brought a putative class action under the federal Do Not Call (“DNC”) regulations pursuant to the TCPA challenging interstate telemarketing calls initiated by the defendant.   The plaintiffs sought to certify a class consisting of persons on the National Do Not Call Registry as well as defendants’ own internal DNC list. 

The court noted that because the “Ninth Circuit ha[d] yet to enunciate an evidentiary benchmark in the area of proof of the elements of class certification [numerosity, commonality, typicality, and adequacy of representation],” the court was in need of a standard.  The court ultimately chose “to align itself with the emerging trend in other districts toward the adoption of a preponderance of the evidence standard.” 

The plaintiffs in Southwell had presented two so-called “numerosity experts.”  The first expert was a Research Associate Professor of Psychiatry and Behavior Sciences at the University of Washington, who testified that he received a series of databases from plaintiffs’ counsel containing information described as “Internal DNC List”, “Fed DNC List,” “Call History Data,” “Email Data” and “Opt-In Data.”  After importing the data into a SQL database, he screened the data to identify unique telephone numbers with a time stamp within the prior 12 month period.  Based on his calculations, plaintiffs estimated that the National DNC class was comprised of 157,624 people and the internal DNC class was comprised of 181,576 people. 

Armed with the preponderance of the evidence standard, the court rejected the professor’s testimony, finding that several factors which could affect the accuracy of the totals remained unaccounted for, including: (1) whether any individuals on the National DNC Register later consented to be called; (2) whether any of the individuals on the National DNC Register were persons with whom defendant had an existing business relationship; (3) how many phone numbers on the list were business numbers; and (4) how many of the calls were made within the thirty (30) day grace period permitted for compliance with the do-not-call requests.  The plaintiffs’ second “numerosity expert” also failed to satisfy the court that the numerosity requirement had been met given that her affidavit described an analysis she had not even performed yet. 

Notably, the Seventh Circuit has adopted the “preponderance of the evidence” standard for class certification.  See, e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).   Accordingly, the court’s opinion in Southwell may provide Seventh Circuit defendants in TCPA class actions with some useful analysis regarding the pitfalls of proving numerousity through expert testimony. 

For more information on the Southwell case or the TCPA generally, contact Katherine Olson at (312) 334-3444 or kolson@messerstrickler.com.