The Court of Appeals for the Sixth Circuit has denied the appeal of class certification from a defendant in a wrong number Telephone Consumer Protection Act case, disagreeing with the defendant that is call records were inadmissible hearsay and finding no abuse of discretion by the district court in certifying the class.
The background: The case was filed after the plaintiff allegedly received prerecorded or artificial voice calls to a phone number that did not belong to the intended recipient. The plaintiff claimed the calls violated the TCPA because they were placed without prior express consent and after the defendant was allegedly informed it had reached a wrong number.
- A district court judge certified a class consisting of individuals whose phone numbers were flagged in the defendant’s records as wrong numbers.
- The defendant sought permission to appeal that decision, arguing that issues of consent could not be resolved on a class-wide basis and that its own call records were unreliable, misleading, and inadmissible hearsay.
The ruling: The Sixth Circuit declined to hear the appeal, ruling that the defendant failed to show the district court abused its discretion in concluding that common issues predominated. Of particular interest to TCPA litigants, the panel rejected the argument that allegedly flawed recordkeeping should defeat class certification, noting that courts do not look favorably on claims that business records are suddenly unreliable when used to define a class.
- As the court put it, “Humana’s argument that its own record-keeping is deficient or misleading is unavailing,” adding that denying certification on that basis would create “the perverse incentive for entities to keep poor records.”
- The court also dismissed the hearsay argument, explaining that evidence at the class certification stage “need not be admissible at trial” and that the defendant had not shown its records could not be used to extract objective data.
- The panel further noted that the defendant’s reliance on a handful of declarations from individuals claiming they had consented, representing roughly 0.05% of the proposed class, was insufficient to defeat predominance. While acknowledging that consent issues could later become unmanageable, the court stressed that the district court retained the ability to revisit certification if individual issues later “threaten to swamp common questions.”
