Brown v. DirecTV, LLC
| Decision Date | 01 December 2021 |
| Docket Number | Case No. CV 13-1170 DMG (Ex) |
| Citation | 562 F.Supp.3d 590 |
| Parties | Jenny BROWN, et al., Plaintiffs, v. DIRECTV, LLC, et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Daniel M. Hutchinson, Jonathan D. Selbin, Lieff Cabraser Heimann and Bernstein LLP, David C. Parisi, Suzanne Havens Beckman, Parisi and Havens LLP, San Francisco, CA, Marnie Cherie Lambert, Lambert Law Firm LLC, Elliot Siegel, King and Siegel LLP, Los Angeles, CA, Alexander H. Burke, Pro Hac Vice, Burke Law Offices LLC, Evanston, IL, Chad M. Kohler, Pro Hac Vice, Michael Joseph Boyle, Jr., Matthew Ryan Wilson, Meyer Wilson Co. LPA, Columbus, OH, Douglas I. Cuthbertson, Pro Hac Vice, Sean Petterson, Pro Hac Vice, Lieff Cabraser Heimann and Bernstein LLP, New York, NY, Robert T. Healey, Jr., Pro Hac Vice, Healey Law LLC, Chesterfield, MO, for Plaintiff Jenny Brown.
Daniel M. Hutchinson, Jonathan D. Selbin, Lieff Cabraser Heimann and Bernstein LLP, San Francisco, CA, Alexander H. Burke, Pro Hac Vice, Burke Law Offices LLC, Evanston, IL, Chad M. Kohler, Pro Hac Vice, Michael Joseph Boyle, Jr., Matthew Ryan Wilson, Meyer Wilson Co. LPA, Columbus, OH, Douglas I. Cuthbertson, Pro Hac Vice, Lieff Cabraser Heimann and Bernstein LLP, New York, NY, Elliot Siegel, King and Siegel LLP, Los Angeles, CA, Robert T. Healey, Jr., Pro Hac Vice, Healey Law LLC, Chesterfield, MO, for Plaintiff Carmen Montijo.
John Nadolenco, Holly Anne Farless, Mayer Brown LLP, Rebecca J. Wahlquist, Kelley Drye and Warren LLP, Los Angeles, CA, Hans J. Germann, Pro Hac Vice, Kyle J. Steinmetz, Pro Hac Vice, Mayer Brown LLP, Chicago, IL, Lauren R. Goldman, Pro Hac Vice, Mayer Brown LLP, New York, NY, for Defendant DirecTV, LLC.
Before the Court are Defendant DirecTV's Motions for Summary Judgment ("DMSJ") [Doc. # 377] and for Decertification of the Class ("MDC") [Doc. # 373], and Plaintiffs Jenny Brown and Carmen Montijo's Motion for Partial Summary Judgment ("PMSJ") [Doc. # 374] and to Partially Exclude Expert Report of Dr. Debra Aron [Doc. # 387]. The motions are fully briefed. [Doc. ## 381 ("Opp. to PMSJ"), 385 ("Opp. to DMSJ"), 386 ("Opp. to MDC"), 387 (Motion to Exclude), 388 ("Reply ISO DMSJ"), 389 ("Reply ISO PMSJ"), 392 ("Reply ISO MDC")]. The Court held a hearing on the motions on November 12, 2021. For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiffs’ MSJ, GRANTS in part and DENIES in part DirecTV's MSJ, and DENIES DirecTV's MDC.
DirecTV is a satellite television provider with millions of customers. PSUF 7-8.
When a customer does not pay his or her bill, DirecTV sends the account to collections. PSUF 9. At any given time, around 3 to 4 million DirecTV customer accounts are in active collections. PSUF 27. When the bills first become past-due, DirecTV initially places the account in "first-party collections," generally while the account-holder is still an active customer. DSUF 10-11. After some period of time, the account ages out of first-party collections, when DirecTV transfers it to "third-party collections." DSUF 18. DirecTV contracts with outside debt collection agencies ("OCAs") to handle all third-party collections and, until 2017, to handle all first-party collections as well. DSUF 15-16, 19; PSUF 13. In 2017, after DirecTV's merger with AT&T, it transferred some first-party collections work in house. PSUF 13.
During first-party collections, the OCAs (and later, DirecTV itself) would attempt to reach out to customers in DirecTV's own name—i.e. , when the OCAs called to collect on DirecTV debts, they would say, "This is DirecTV calling." DSUF 13; PSUF 11, 58. The OCA would call the phone number on the account that the customer had provided to DirecTV, no matter how much time had passed since the number was provided. DSUF 17; PSUF 130-131. Some calls were "prerecorded," meaning they delivered a recorded or automated voice message, rather than a live person speaking. DSUF 14; PSUF 37. One OCA that DirecTV contracted with for first-party collections was iQor. DSUF 15.
During third-party collections, the process differed in two material ways. First, unlike with first-party collections, the OCAs did not collect under DirecTV's name or hold themselves out as DirecTV to the called party. DSUF 32. The OCAs still remitted the entirety of all payments collected to DirecTV though, minus a commission. PSUF 32-33. Second, in third-party collections the OCAs did not rely solely on the phone number provided by the customer to DirecTV. Instead, OCAs also attempted to search for up-to-date phone numbers, a process known as "skip-tracing." DSUF 26-27, PSUF 92. One OCA that DirecTV contracted with for third-party collections was Credit Management, LP ("CMI"). PSUF 39. CMI made prerecorded calls during third-party collections, specifically with a script that prompted the called party to press certain numbers in response to questions. PSUF 39, 41. One prompt allowed the recipient to select a "wrong person" option. PSUF 43.
Both iQor and CMI maintained call data for each call placed during DirecTV's first-and third-party collections. PSUF 166. The data included codes that were applied to the call to signify a certain disposition. Some of these codes were intended to signify that the recipient of the call was not the DirecTV customer that the OCA intended to reach; i.e. , that it was a "wrong number." PSUF 169-70, 180-82. These codes were appended to some calls that were prerecorded. PSUF 172, 176.
For first-party collections, iQor uploaded its disposition codes, including those referring to wrong numbers, to a DirecTV database on a daily basis. PSUF 148-49. CMI did not contemporaneously provide its disposition codes directly to DirecTV for third-party collections, but it did input daily status updates on the customer accounts in DirecTV's system. PSUF 151. These updates included status codes that represented "bad phone," which sometimes was coupled with an explanatory note that said, "wrong number." PSUF 151-52. CMI also sent monthly performance reports to DirecTV. PSUF 105. One monthly report, for February 2014, conveyed that CMI made 388,680 calls, of which 54,151 were "connected. PSUF 110. CMI was able to validate that the "right party" had been reached in 2,412 of these 54,151 connected calls. PSUF 111. In one audit of iQor in 2013, iQor told DirecTV that it was coding about 50 calls a day as "wrong number." PSUF 146.
DirecTV estimated that about 10% of accounts sent to third-party collections had wrong phone numbers reported, with that amount increasing to 20-40% for the life of the debt. PSUF 138. In a deposition, a DirecTV senior manager stated that wrong number calls are the result of phone numbers being recycled among users by phone companies, and that some people will receive calls intended for the previous user of the number. PSUF 155. She also acknowledged that prerecorded calls were used by OCAs in order to "reduce[ ] headcount." PSUF 53. Another deponent agreed that it is "common knowledge" that some phone numbers are no longer correct as to the customer they are assigned and "no longer function to reach a DirecTV customer." PSUF 156. DirecTV also admitted that skip-tracing "can lead to the wrong number being identified." PSUF 154. In late 2013, DirecTV conducted an audit of iQor's "wrong number" process with respect to first-party collections, to ensure it was following the proper procedure of removing numbers that were reported as wrong numbers. PSUF 145.
DirecTV's contracts with each OCA for all of its third-party collections, including with CMI, were nearly identical. PSUF 74. The agreements required the OCAs to provide DirecTV with a list of their management-level personnel and to replace those personnel upon DirecTV's request. PSUF 85. They required the OCAs to inform DirecTV of any changes to their equipment configuration and to use standardized forms, scripts, and letters that they could not alter without DirecTV's prior written approval. PSUF 88. The agreements gave DirecTV the discretion to recall accounts from the OCA "for any reason" and to disallow the OCA from using any independent contractor. PSUF 83, 87. The agreements set a maximum discount off the debt at which the OCA could settle an account. PSUF 93. DirecTV performed site visits at OCAs on a roughly annual basis, during which its representatives would sometimes observe calls, review scripts, assess quality control procedures, obtain skip-tracing information, and request follow-up documentation. PSUF 95-103, 224. The OCAs and their personnel were subject to quarterly program reviews by DirecTV. PSUF 82. DirecTV contractually required the OCAs to skip-trace in third-party collections. PSUF 136. Either party could terminate the agreement with 60 days’ notice. DSUF 31.
DirecTV received several complaints from persons claiming that they received debt collection calls about DirecTV accounts that they did not have, including some that indicated they received prerecorded calls. PSUF 154.2 In November 2013, performed an audit of the OCAs’ compliance with the Telephone Consumer Protection Act ("TCPA"). PSUF 119-21. On December 4, 2015, DirecTV told all of its OCAs to "stop auto dialing cell phone number [sic ], even when you have consent." PSUF 122. The OCAs complied. PSUF 123.
The procedural background of this case prior to class certification is described in the Court's March 29, 2019 Order Re Plaintiff's Motion for Class Certification ("Class Cert. Order"). [Doc. # 275 at 1-2.3 ] The Court initially certified a class represented by Plaintiffs consisting of persons who, within four years prior to and after the filing of the action, received a non-emergency, prerecorded telephone call to a cell phone from DirecTV and/or its third-party debt collectors, and who...
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