A District Court judge in Virginia has denied a plaintiff’s motion to certify a class action in a Telephone Consumer Protection Act case, after the plaintiff filed suit because he received a pre-recorded message to his cell phone that was intended for someone else, but the number had been reassigned to the plaintiff.
A copy of the ruling in the case of Davis v. Capital One can be accessed by clicking here.
The plaintiff started receiving pre-recorded calls from the defendant in May 2022. The phone number in question had belonged to someone else and was subsequently reassigned to the plaintiff. The plaintiff contacted the defendant to let it know it was calling the wrong number and to please stop calling him. The representative entered the wrong code into the account which led to two more calls being placed to the plaintiff, but no messages were left. The plaintiff answered another call from the defendant, told the representative that the defendant was calling the wrong party, and never heard from the defendant again.
The plaintiff filed suit, alleging the defendant violated the TCPA by making pre-recorded calls to his number without his consent, and sought to include anyone else in the United States who received a call from the defendant with an artificial or pre-recorded voice, but was not a customer of the company.
Ultimately, though, the plaintiff failed to propose a reliable method for identifying members of the class to be plaintiffs in the suit, ruled Judge Anthony J. Trenga of the District Court for the Eastern District of Virginia. The “Plaintiff’s methodology gives no assurance that the resulting group of individuals identified would not be comprised of a large number of Capital One customers,” Judge Trenga wrote.
The judge also noted that individualized inquiries would be needed to determine whether each class member provided consent to be contacted, which also was enough to decide not to certify the class.
