Bee, Denning, Inc. v. Capital Alliance Group
2015 U.S. Dist. LEXIS 129495
S.D. Cal.2015Background
- Plaintiffs Bee, Denning, Inc. and Gregory Chick allege Capital Alliance Group and its CEO Narin used third‑party vendors to send unsolicited fax advertisements (using multiple business aliases) and to place prerecorded automated calls, violating the TCPA.
- Bee received multiple unsolicited fax ads promoting business loans that routed to Capital Alliance; Plaintiffs say Capital Alliance used at least eleven aliases on the faxes and retained Absolute Fax to send them.
- Chick received a prerecorded voice call from 888‑364‑6330 promoting loans; Plaintiffs trace that toll‑free number to Capital Alliance and its marketing vendor.
- Plaintiffs sought certification of two nationwide Rule 23(b)(3) classes: (1) junk fax recipients of faxes bearing listed aliases; (2) persons who received prerecorded calls from 888‑364‑6330 to their cell phones. The court narrowed the automated‑call class to cell phones only (not residential lines).
- Defendants moved to strike a late declaration and opposed certification on ascertainability, Rule 23(a) prerequisites, predominance, and superiority grounds. The court denied the motion to strike and granted class certification with appointed class representatives and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ascertainability of classes | Class can be defined by objective criteria (aliases, toll‑free numbers) and identified via carrier call logs and reverse lookup | Plaintiffs lack proof linking callers/numbers to Defendants; faxes did not show "Capital Alliance" name | Classes are ascertainable; aliases and call records provide administratively feasible, objective criteria |
| Numerosity | Evidence (call logs) shows large class sizes (junk fax >150,000; automated calls >33,000) | No direct evidence linking Defendants to alleged class members | Numerosity satisfied for both classes based on reasonable, evidence‑based estimates |
| Commonality & Typicality | Claims arise from the same course of conduct (unsolicited faxes and prerecorded calls traceable to same toll‑free numbers/aliases) and class representatives received the same alleged harms | No common nucleus of operative facts across all putative members; insufficient evidence tying conduct to Defendants | Commonality and typicality satisfied; common questions (liability, willfulness, vicarious liability) will generate classwide answers |
| Predominance & Superiority (Rule 23(b)(3)) | Common issues (whether Defendants caused faxes/calls and violated TCPA) predominate; class action is the superior, economically feasible vehicle given small per‑claim damages | Individualized issues (consent, EBR, differing state laws) defeat predominance and manageability | Predominance and superiority met: no evidence Defendants obtained prior express consent or EBRs; common questions predominate and class adjudication is superior |
Key Cases Cited
- Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) (discussing Rule 23 requirements and district court’s rigorous analysis)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S. 2011) (class certification requires a common contention capable of classwide resolution)
- Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) (burden on party seeking certification; considerations in class certification analysis)
- Bateman v. Am. Multi‑Cinema, Inc., 623 F.3d 708 (9th Cir. 2010) (district court has broad discretion in class certification decisions)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (permissive typicality standard; superiority and predominance guidance)