Citigroup has successfully prevented a class of potential plaintiffs from being certified in a lawsuit filed against the bank for allegedly violating the Telephone Consumer Protection Act by contacting individuals using an automatic telephone dialing system without their expressed consent.
The judge in the case also granted in part and denied in part a request to strike the testimony of an expert witness — Jeffrey Hansen — who is working on behalf of the plaintiffs in attempting to determine the size of the class.
A copy of the ruling in Tomeo v. Citigroup can be accessed by clicking here.
The plaintiff were seeking to include individuals who had told Citigroup that they no longer wished to be contacted by the bank and those who indicated that the bank had called the wrong number as two separate classes.
The defendant’s experts raised doubts about the potential members of the class because individuals often “pendulate” between withdrawing consent to be contacted and then re-consenting to being contacted. Thus, the mere fact that an account had been flagged as one where no contact was to be made does not “establish a lack of consent in the future.” As well, there are individuals who tell representatives from the defendant that the defendant has called the wrong number as a means of getting it to stop calling, only to call the defendant later using the exact same number.
The only way to determine whether consent was granted would be to review the individual notes for each account, according to the defendant’s experts.
Because the defendant was able to show it had consent for a “significant” percentage of the potential class members and because the plaintiff failed to establish a way to determine consent on a class wide basis, the judge denied certification.
