Smith v. Microsoft Corp.
2014 U.S. Dist. LEXIS 12799
S.D. Cal.2014Background
- Plaintiff Neil Smith (Ill.) sues Microsoft under the TCPA for unsolicited promotional text(s) ("Xbox Texts") sent via short code 88202 on Sept. 12, 2008; Smith received one such message.
- Plaintiff seeks to certify a nationwide class: all individuals who received a text from short code 88202 containing "Xbox" on Sept. 12–13, 2008 (approx. 55,000+ scrubbed numbers).
- Alleged injuries: statutory damages under the TCPA ($500 per violation, possible treble) and alleged annoyance; some class members allegedly incurred carrier fees.
- Key factual complications: the marketing vendor Come & Stay (C & S) closed U.S. operations in 2009 and dissolved in 2012; many C & S records were destroyed; some potential witnesses are deceased or located out-of-district.
- Procedural posture: Smith moved for class certification under Fed. R. Civ. P. 23; the court conducted a rigorous Rule 23(b)(3) analysis and denied certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Superiority under Rule 23(b)(3) | Class action is superior because common, single-day TCPA violations make individual suits impracticable and inefficient | Class treatment is not superior: individualized inquiries (consent, receipt, subscriber identity), lack of discoverable records, manageability problems | Denied — superiority not satisfied; manageability and evidentiary impossibility dispositive |
| Proof of lack of prior express consent | Smith contends consent burden effectively shifts under Meyer; class-wide discovery can reveal consent issues | Microsoft argues consent cannot be proved or disproved class-wide because source records no longer exist and the vendor dissolved | Held against certification — plaintiff cannot prove absence of consent for class; Meyer distinguished and does not overcome evidentiary dead ends |
| Identifying/ascertaining class membership | The scrubbed m-Qube list identifies cellular numbers sent the texts; plaintiff can narrow class to recipients | Microsoft: scrubbed list does not show who actually received the texts, many numbers disconnected or reassigned, and carriers may lack historical subscriber data | Held: identification/notice problems weigh against certification; significant difficulty in verifying recipients and contacting members |
| Evidentiary objections to defendant's exhibits | Smith objected to certain evidence; argued some exhibits inadmissible | Microsoft contended court may consider such evidence at certification stage and objections are premature | Held: court may consider the evidence for certification purposes; objections denied |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (Rule 23 requires rigorous, merits-informed analysis of class prerequisites)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (Rule 23(b)(3) demands a more exacting inquiry on predominance/superiority)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) (express prior consent is an element of a TCPA claim)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (text messages qualify as calls under the TCPA)
- Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) (district court acts as gatekeeper for expert evidence at class-certification stage)
- Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) (factors relevant to superiority and manageability)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (superiority inquiry involves comparison of alternative dispute-resolution mechanisms)
- Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) (courts may not resolve merits at class-certification stage but may conduct limited merits inquiry)