MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion for class certification filed by the plaintiff, Thomas Krakauer. (Doc. 47.) Dr. Krakauer is a member of the proposed classes and has demonstrated that the members of the proposed classes are ascertainable. Dr. Krakauer’s claims are typical of class members, common questions of law and fact predominate, and the class action is the superior method of adjudication. The defendant’s arguments against predominance are largely speculative and otherwise present minor potential individual issues that are manageable and that do not defeat the predominance of the common, central issues in this case. The Court will grant the motion for class certification.
BACKGROUND
The Telephone Consumer Protection Act (“TCPA”) authorizes the Federal Communications Commission to regulate telemarketing activities and prohibits sellers from making phone solicitations to people who list their phone numbers on a national do-not-call registry (“NDNC list”) without consent. See 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c)(2); see also Mims v. Arrow Fin. Servs., LLC, — U.S. -,
The TCPA also requires sellers and telemarketers to maintain an “internal” do-not-call list (“IDNC list”), that is, “a list of persons who request not to receive telemarketing calls made by or on behalf of that [seller].” 47 C.F.R. § 64.1200(d); see also Dish Network,
The TCPA creates a private right of action for injunctive and monetary relief for any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the [TCPA] regulations.” 47 U.S.C. § 227(c)(5); see also 47 C.F.R. § 64.1200(d)(3) (liability for IDNC list violations). These rules only apply to residential telephone numbers; calls to business are not actionable. See 47 C.F.R. § 64.1200(c)(2), (d)(3). Calls are also not actionable if a seller has an “established business relationship” (“EBR”) with a person,
DR. KRAKAUER’S MOTION FOR CLASS CERTIFICATION
In 2003, Dr. Krakauer registered his residential phone number on the NDNC list. (Doc. 48-1 at 8.) Dr. Krakauer alleges that Dish Network, a seller of satellite television programming and related services, (Doc. 56-4 at ¶ 5), or its authorized dealer, Satellite Systems Network (“SSN”), called him on this number numerous times between May 2009 and September 2011, including at least two calls in a 12-month period, in violation of the TCP A. (Doc. 32 at ¶¶ 25-30, 54-59.) In these calls, SSN attempted to sell Dr. Krakauer Dish services. (Doc. 32 at ¶ 26.) The calls continued even after Dr. Krakauer called Dish to complain about SSN’s sales tactics and after Dish placed Dr. Krakauer on its IDNC list and instructed SSN to do the same. (Doc. 32 at ¶¶ 27-28; see also Doc. 81-51 at 3-12; Doc. 81-54.) During this time, SSN was an authorized dealer for Dish and only marketed for Dish. (Doc. 32 at 1128; see also Doc. 48-5 at 6.)
Dr. Krakauer contends that Dish is liable for these calls under agency principles of actual authority, apparent authority, and ratification. (Doc. 32 at ¶¶30, 54-59.) He seeks injunctive and monetary relief, (Doc. 32 at 14), and class-wide relief on behalf of two proposed classes: (1) all persons whose telephone numbers were on the NDNC list for at least 30 days, but who received telemarketing calls from SSN to promote Dish between May 1, 2010, and August 1, 2011 (the “NDNC class”); and (2) all persons whose telephone numbers were on the IDNC list of Dish or SSN, but who received telemarketing calls from SSN to promote Dish between May 1, 2010, and August 1, 2011 (the “IDNC class”). (Doc. 47.)
ANALYSIS
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, — U.S. -,
As threshold matters, the putative class representative must show that he is a member of the proposed class, see Fed.R.Civ.P. 23(a) (“One or more members of a class may sue ... as representative parties on behalf of all members —”), and must establish that the members of the proposed class are “readily identifiable” or “ascertainab[le].” EQT Prod. Co. v. Adair,
It is undisputed that each of Dr. Krakauer’s two proposed classes is so numerous that joinder of all members is impracticable. See Fed.R.Civ.P. 23(a)(1). The NDNC class as proposed includes 20,450 members and the IDNC class includes 7,831 members. (See Doc. 48 at 10-12; Doc. 48-2 at 10-15.) Dish has not challenged that there are common questions of law and fact as to either class, see Fed.R.Civ.P. 23(a)(2); discussion infra, nor has Dish challenged Dr. Krakauer’s ability to fairly and adequately protect the interests of the classes. See Fed.R.Civ.P. 23(a)(4); (see generally Doc. 56.) Thus it is undisputed that Dr. Krakauer has met the
As to the IDNC class, Dish challenges whether Dr. Krakauer has met the threshold requirement of membership in the class and therefore contends that his claims are not typical. (See Doc. 56 at 33-34); Fed.R.Civ.P. 23(a)(3). As to both proposed classes, Dish challenges whether the class members are ascertainable, (see Doc. 56 at 14-19), and whether common questions predominate over questions affecting only individual members as required by Rule 23(b)(3). (See Doc. 56 at 19-33); Fed.R.Civ.P. 23(b)(3).
I. Threshold Issues: Membership in the IDNC Class and Ascertainability
A. Membership in the IDNC Class
In 2009, Dr. Krakauer had an account with another satellite television provider, DirecTV. (Doc. 102 at 3.) In May 2009, he received a call from a man named “Ken” who led him to believe that he could save money on DirecTV. (See Doc. 102 at 14-15.) Dr. Krakauer gave Ken his credit card information and, later in the call, believed Ken had used this information to pose as him and get his account information from DirecTV. (See Doc. 102 at 15; Doc. 56-1 at 3.) At some point, Ken said if Dr. Krakauer switched to Dish he could save money, (See Doc. 102 at 15. ) Dr. Krakauer became “annoyed” that Ken posed as him to get details of his DirecTV account and ended the call. (Doc. 102 at 15.) When asked if he “told Ken not to call [him] back again,” Dr. Krakauer testified that he did not. (Doc. 102 at 17.)
Days later, Dr. Krakauer called Dish and DirecTV to complain. (See Doc. 102 at 15-16. ) Dr. Krakauer spoke to “Rebecca” with Dish who discovered that Ken worked for SSN. (See Doc. 102 at 15; Doc. 56-1.) Dr. Krakauer told Rebecca that he “was annoyed” and thought it “was completely inappropriate ... what [Dish was] doing.” (Doc. 102 at 15.) In explaining why he called Dish, Dr. Krakauer testified that he “was trying to find out what had happened, why [he] had received this call and why somebody affiliated with Dish Network would [call to get him] to change ... to Dish” and that he called “to see if Dish Network could stop it.” (Doc. 102 at 16.) Dr. Krakauer testified that someone with Dish told him that Ken was not a Dish employee, but a contractor, so Dish was “not able to do anything.” (Doc. 102 at 16.)
In internal emails, Dish and SSN employees characterize Dr. Krakauer’s complaint as a “DNC issue” or a “ ‘Do Not Call’ violation.” (See Doc. 56-1; Doc. 74-7 at 2-3; Doc. 74-1 at ¶21.) In one email, a Dish employee states that she “received the DNC” and characterizes Dr. Krakauer’s complaint as “his DNC issue.” In SSN emails, an SSN employee states that, before Dr. Krakauer’s complaint, SSN “did not know that [he] wanted off [SSN’s] calling list” and characterizes the complaint as the type where a customer asks not to be contacted again. (See Doc. 74-7 at 2.) Dish also directed SSN to add Dr. Krakauer to SSN’s IDNC list. (See Doc. 81-54; see also Doc. 87 at 7 n. 1.)
Dish does not dispute that Dr. Krakauer continued to receive calls from SSN promoting Dish. (See generally Doc. 56.) Dr, Krakauer testified that all calls after May 2009 were “virtually identical ]” on the caller’s end and that, each time, he either “was pleasant and said [he was] not interested ... or [he] just hung up.” (Doc. 102 at 17.)
The TCPA regulations state that if a person makes “a request ... not to receive calls” from a telemarketer, the telemarketer must place that person on its IDNC list and not call that person without consent. 47 C.F.R. § 64.1200(d)(3). Neither the TCPA nor its regulations define what constitutes “a request.” Dish contends that Dr. Krakauer has not provided sufficient evidence “that he made an affirmative request not to receive future calls.” (See Doc. 56 at 33-34.) Dr. Krakauer contends that no “magic words” are required and that he made a request. (See Doc. 81 at 18-20.)
Dish relies primarily on Bailey v. Domino’s Pizza, LLC,
Dr. Krakauer’s testimony as to what he told a Dish employee and the purpose of his calls to Dish along with Dish’s and SSN’s internal documents concerning his complaints support the determination that Dr. Krakauer made “a request” not to be called. Dr. Krakauer testified that he called Dish to find out why someone affiliated with Dish would call “to get [him] to change from DirecTV to Dish” and “to see if Dish ... could stop it.” (Doc. 102 at 16.) Dish contends that Dr. Krakauer was only trying to get Dish to “stop” having its retailers impersonate him to get account information. (See Doc. 87 at 5-7.) Dr. Krakauer’s testimony is equally consistent with Dr. Krakauer asking Dish to “stop” having its retailers call him to get him to switch to Dish. That is in fact how Dish and SSN interpreted his calls, as their own internal documents show. (See Docs. 56-1, 74-7.)
Dish’s argument to the contrary depends on a strained interpretation of its own internal documents and the internal documents of its authorized dealer and ignores their common sense meaning. In internal emails, Dish and SSN employees generally characterized Dr. Krakauer’s complaint as a “DNC issue” or “ ‘Do Not Call’ violation,” (see Does. 56-1, 74-7), and discussed practices to remove such individuals who do not want to be called. (See Doc. 74-7 at 2.) While there was one email which characterized Dr. Krakauer’s complaint as one based on harassment, that email is ambiguous as to the DNC request.
On the whole, Dr. Krakauer has established by a preponderance of the evidence that he is a member of the proposed IDNC class. See Brown v. Nucor Corp.,
B. Ascertainability
As a threshold matter, Rule 23 requires “that the members of a proposed class be readily identifiable” or “aseertainab[le].” EQT,
1. The putative class lists
Dr. Krakauer has offered evidence from Anya Verkhovskaya who, with her company A.B. Data, analyzed SSN’s call records and other data to identify putative class members for both classes. (See Doc. 48 at 9-12; Docs. 48-2 to 48-4.) Dr. Krakauer received records for calls placed by SSN from Five9, Inc., a company that provided SSN with software to assist in making telemarketing calls. (See Doc. 48 at 10-11; Doc. 48-2 at 8-9;
As to the NDNC class, Ms. Verkhovskaya determined which of the more than 1.6 million calls in the SSN records were “connected.” (Doc. 48 at 11; Doc. 48-2 at 8-10; Doc. 103 at 21.) Second, she identified numbers that received more than one connected call in any 12-month period during the class period. (Doc. 48-2 at 10; Doc. 103 at 1415); see also 47 U.S.C. § 227(c)(5). Third, she used data from Nexxa, Inc., a vendor that collects data on when individuals registered on the NDNC list, to determine which of these numbers were registered on the NDNC list as of April 1, 2010. (Doc. 48 at 11; Doc. 48-2 at 4, 10; see also Doe. 103 at 24-25.) Fourth, she removed non-actionable calls to businesses by (1) removing calls “assigned the disposition ‘Business’” in the SSN call logs and then (2) coordinating with LexisNexis, a vendor that provides information on whether a number is associated with a business or residence during a specific time period, to remove additional business numbers. (Doc. 48 at IT, Doc. 48-2 at 5,10-11; Doe. 103 at 26-28.) Last, she removed non-actionable calls to Dish customers by removing calls “assigned the disposition of ‘Dish Customer’ ” in the SSN call logs. (Doe. 48-2 at 11; Doe. 48 at 11; Doc. 103 at 15.) This resulted in a list of 20,450 unique numbers that received 57,-900 calls. (Doc. 48 at 11-12; Doc. 48-2 at 11-12.) Using information already in the SSN call logs and supplemented by Lexis data, she obtained the names and addresses of most persons associated with these numbers during the class period. (Doe. 48 at 12; Doc; 48-2 at 8-9, 12, 15-16; Doc. 103 at 34, 37; see also Docs. 48-2 to 48-4.) These persons make up the NDNC class. (See Doc. 47.)
For the IDNC class, she performed a similar analysis. (See Doc. 48-2 at 12-15.) As to Dish’s IDNC list, Dr. Krakauer provided Ms. Verkhovskaya with files containing Dish’s IDNC list, and she followed the same methodology as with the NDNC list and identified 7,117 unique numbers. (Doc. 48-2 at 12-14.) As to SSN’s IDNC list, she used the SSN call logs to identify connected calls with “DNC” or “Do Not Call” in the disposition field, (Doc. 48-2 at 14); she took this to mean that these numbers were on SSN’s IDNC list. (Doc. 103 at 15-17, 21-22.) She then performed steps two through five above and identified 714 unique numbers. (Doe. 48-2 at 14-15.) Adding the numbers from SSN’s and Dish’s IDNC lists, she identified 7,831 numbers that received 22,607 calls in the IDNC class. (See Doc. 48-2 at 13-15.) As with the NDNC class, Ms. Verkhovskaya used the SSN call logs supplemented by Lexis data to obtain the names and addresses of most persons associated with these numbers during the class period. (Doc. 48-2 at 13-16; see also Doc. 48-4 at 36-175.)
2. Standing to sue under Section 227(c)
First, Dish contends that only the telephone number subscriber has standing to sue under the TCPA for receiving a telemarketing call on a number on the NDNC list. (Doc. 56 at 15.) Dish contends that the data Ms. Verkhovskaya used does not identify the subscriber and therefore the class members for both proposed classes are not ascertainable. (Doe. 56 at 15-17; see also Doc. 103 at 37-38; Doc. 56-13 at ¶ 7.)
Section 227(c) of the TCPA and the related regulations protect the privacy of residential telephone subscribers and allow them to register their numbers on the NDNC list. See 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c)(2) (“No person or entity shall initiate any telephone solicitation to ... [a] residential telephone subscriber who has registered his or her telephone number on the [NDNC list] — ”); see also Mims,
In Moore v. Dish Network L.L.C.,
In considering whether an individual has statutory standing, courts consider whether the individual “is a member of the class given authority by a statute to bring suit.” CGM, LLC v. BellSouth Telecomms., Inc.,
The TCPA simply states that “[a] person who has received” a call in violation of the Section 227(c) regulations may sue and, by its plain language, does not limit standing to only subscribers. See 47 U.S.C. § 227(c)(5); see also Charvat v. EchoStar Satellite, LLC,
3. Date of NDNC list registration
Dish contends that the data Ms. Verkhovskaya used to determine when individuals registered on the NDNC list is inaccurate and therefore the members of the NDNC class are not ascertainable. (See Doc. 56 at 17- 18.) The only example Dish provides concerns Dr. Krakauer’s registration date. (See Doe. 56 at 17-18.) That example is a red herring.
The data from Nexxa that Ms. Verkhovskaya used indicates that he registered on June 1, 2003, but the NDNC list website shows that he registered on July 3, 2003. (See Doc. 56 at 17-18; Docs. 56-14, 56-15.) The discrepancy occurred because Dr. Krakauer registered his number twice; a Nexxa employee testified that Nexxa maintains the initial date of registration while the date on the NDNC website can be “overwritten” by a later registration. (See Doc. 76 at 14; Doc. 76-4 at ¶¶ 2-5.) This quirk seems unlikely to occur often, and it is unlikely to be matei’ial. As to Dr. Krakauer, under either date his number was on the NDNC list for at least 30 days before he received calls from SSN.
4. Individuals on the IDNC lists of Dish or SSN
Finally, Dish contends that the data Ms. Verkhovskaya used to identify individuals on the IDNC lists is inaccurate and unreliable and therefore the members of the IDNC class are not ascertainable. (See Doc. 56 at 18- 19.) The TCPA regulations require telemarketers to maintain IDNC lists, that is, “a list of persons who request not to receive telemarketing calls made by or on behalf of
Dish has offered evidence that its IDNC list is not limited to individuals who ask not to be called, but also includes other individuals Dish has decided not to call for other reasons, such as allegations of rude behavior. (See Doc. 56 at 19; Doc. 56-4 at ¶¶ 9-10.) Dish contends that because its IDNC list includes more than just individuals who request not to be called and because neither Dr. Krakauer nor Dish can tell who on the list made such a request, the members of the IDNC class are not ascertainable without “individual fact-finding” as to each putative class member. (See Doc. 56 at 19.)
Dish’s argument that its IDNC list is over-inclusive and therefore the IDNC class members are not ascertainable is not persuasive. Dish made this same argument in an earlier case, and the Court agrees with that court’s reasoning. See Dish Network,
The fact that Dish has listed a person on its IDNC list is persuasive circumstantial evidence that a person associated with that number asked Dish not to make telemarketing calls. See Dish Network,
As to SSN, Dr. Krakauer did not receive files containing SSN’s IDNC list as he did with Dish; rather, he took the disposition codes “DNC” and “Do Not Call” in SSN’s call records to mean that the called individual was on SSN’s IDNC list. (See Doc. 48-2 at 14-15; Doc. 103 at 33.) Dish has provided evidence that these codes mean something completely different: SSN’s general manager testified that these codes “do not indicate a ‘do not call’ request,” but rather signal other SSN agents to not call the individual because a “particular SSN agent would personally call back that individual (i.e., it was ‘their lead’).” (Doc. 56-10 at ¶ 4; see also Doc. 56 at 18.) Dish contends that the IDNC class members Dr. Krakauer identified as coming from SSN’s IDNC list are therefore not ascertainable. (Doc. 56 at 18-19.)
At the Court’s June 30 hearing on the pending motions, Dish’s counsel stated without dispute that “SSN is no longer in business, so there is no subpoena to SSN” for its IDNC list. (See Minute Entry June 30, 2015.) The list derived from SSN’s call logs appears to be the best record there is of the numbers on SSN’s IDNC list.
This dispute does not make the SSN IDNC class members not ascertainable. Ascertainability only requires that a court be able to “identify the class members in reference to objective criteria,” EQT,
II. Rule 23(b)(3)
Dr. Krakauer asserts that this action falls under Rule 23(b)(3). (See Doc. 47; Doc. 48 at 13.) “Rule 23(b)(3) has two components: predominance and superiority.” Thorn,
Rule 23(b)(3) provides a non-exclusive list of factors for courts to consider in deciding whether a class action meets these two requirements:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3); see also Thorn,
Dr. Krakauer identifies a number of common questions of law and fact, (see Doc. 48 at 17-18), and specifically urges that two common issues appropriate for class resolution predominate over individual issues such that a class action is superior to other methods for resolving the case. (See Doc. 48 at 21-22); see also Fed.R.Civ.P. 23(b)(3). These issues are: (1) whether SSN called a number on the NDNC or IDNC lists; and (2) whether Dish is liable for SSN’s actions. (Doc. 48 at 21-22.)
A. Predominance
1. Common Questions
a. Whether SSN called a putative class member
Dr. Krakauer proposes to prove that SSN called the numbers in both classes during the class period through testimony from one expert witness and using the SSN call logs. (See Doc. 48 at 23.) Dish has not disputed that the SSN logs this expert used represent calls SSN made to promote and sell Dish products and services during the relevant period. (See Doc. 56 at 8, 11-13.) Nor has Dish disputed that the question of whether SSN called a number on the NDNC list, Dish’s IDNC list, or SSN’s purported IDNC list is a common question that can be decided in one hearing. (See Doc. 56 at 19-30.) This is the first key question for determining liability, and it is a common question of fact.
b. Vicarious liability of Dish for SSN’s calls
The question of whether SSN made these calls on Dish’s behalf is the second key ques
Under the TCPA, a seller like Dish may be held vicariously liable for violations committed by a third-party telemarketer like SSN if the telemarketer is acting “on behalf of’ the seller. See 47 U.S.C. § 227(c)(5); see also Smith v. State Farm Mut. Auto. Ins. Co.,
It is well-established that whether an agency relationship exists is a factual determination. See Ashland Facility Operations, LLC v. N.L.R.B.,
The issues of apparent authority and ratification are less clear. There is a significant dispute between the parties as to the appropriate legal tests to be applied to determine liability under apparent authority and ratification.
For both theories, Dr. Krakauer relies on the FCC’s interpretation embodied in a 2013 declaratory ruling. (See Doc. 75 at 19-23); see also In re Dish Network, LLC, 28 FCC Red. 6574,
Dish contends that apparent authority requires proof that: (1) the called individual reasonably believed that Dish consented to have SSN act for Dish; and (2) the individual’s belief is based on some conduct traceable to Dish. (See Doe. 56 at 30-31.) Dish contends that ratification requires proof that: (1) SSN represent to each caller that it is calling on Dish’s behalf; (2) Dish have knowledge of and assent to each call; and (3) knowingly accept some benefit from each call. (See Doc. 56 at 32; see also Doc. 74 at 22-25.) If Dish’s view is correct, both theories would present individual questions of fact as to every class member.
Numerous courts have concluded that the FCC’s guidance on apparent authority and ratification is not binding nor entitled to deference and have rejected this guidance as inconsistent with common law agency princi
The question of what legal standard applies to the determination of apparent authority and ratification is a common question of law. Dish is highly likely to win on this question, however, as the reasoning in the cases it cited is quite persuasive. (E.g., Doc. 56 at 30-32.) This would mean that apparent authority and ratification would involve many individual questions. On the other hand, it will not be necessary to reach apparent authority or ratification if Dr. Krakauer and the class prevail on an actual authority theory. It is also likely that Dr. Krakauer will be unable to muster sufficient evidence of apparent authority or ratification, see Dish Network,
2. Individual questions
Dish identifies several issues concerning both classes that it says will have to be determined on an individual basis and contends that these individual issues predominate and preclude certification under Rule 23(b)(3). (See Doc. 56 at 20.) Dish contends that an individual determination will have to be made as to whether: (1) a phone number, including a wireless number, is associated with a business; (2) Dish had an established business relationship with a class member at the time of a call; (3) an individual first called SSN; and (4) an individual consented to be called. (See Doc. 56 at 20-30.)
a. Is the number called a business number?
The TCPA section at issue only prohibits calls to residential numbers. See 47 C.F.R. § 64.1200(c)(2), (d)(3); see also 47 U.S.C. § 227(c)(5). Dr. Krakauer, as the plaintiff, bears the burden to prove that a number called was residential. See Dish Network,
Dish has not presented evidence to support these contentions. Dish has only presented evidence of a few dozen numbers that appear to be business or mixed use, (see Docs. 56-18 to 56-21), and has submitted no evidence, and indeed only counsel’s assertions in a brief, that there are “hundreds” or “many” others. (See Doc. 56 at 23-26); see also Adjabeng v. GlaxoSmithKline, LLC, No. 1:12-CV-568,
The fact that a class list contains members whose claims may fail on the merits does not mean that the class cannot be certified. “[Excluding all uninjured class members at the certification stage is almost impossible in many cases, given the inappropriateness of certifying what is known as a ‘fail-safe class’ — a class defined in terms of the legal injury.” Nexium, 777 F.3d at 22; see also Messner v. Northshore Univ. HealthSystem,
Dr. Krakauer will have to prove that the class members are entitled to relief, i.e., that their numbers were used for residential purposes at the time. Certifying the class
As to wireless numbers, Dish additionally relies on United States v. Dish Network where the court noted that the FCC presumes that a wireless number on the NDNC list is residential but “may require a complaining wireless subscriber to provide further proof of the validity of that presumption.” Dish Network,
To the extent Dish has evidence that some numbers on Dr. Krakauer’s putative class list were associated with businesses during the class period, Dish can present that evidence through an expert witness using data from Lexis or another vendor. On the record before the Court, to the extent resolution of these issues presents individual questions, these questions appear few in number, straightforward, and peripheral to the central issues in this litigation discussed supra.
b. Is there an established business relationship?
A call is exempt from TCPA section at issue if the seller has an established business relationship (“EBR”) with the residential subscriber. See 47 U.S.C. § 227(a)(4), (c)(3)(F); 47 C.F.R. § 64.1200(c)(2), (f)(5), (f) (14)(ii); see also Snow,
Dish first contends that it provided a customer list to Dr. Krakauer and that he failed to remove “thousands” of customers on this list from the class. (See Doe. 56 at 2122.) Dr. Krakauer contends that the list has not been prepared in a way that allowed him or his expert to exclude customers from the class list. (See Doc. 75 at 17.) The list itself is certainly incomprehensible, (see Doc. 75 at 17; see, e.g., Doc. 56-16 at 2), and Dish has not provided evidence or explained to the Court as to how it could be used to exclude such customers.
Dish next contends that Dr. Krakauer must offer a method that would allow Dish to prove this EBR defense on a class-wide basis and that he has failed to do so. (See Doc. 56 at 22-23.) This position is correct.
First, the presence of affirmative defenses does not “automatically” render class certification inappropriate. See Brown v. Kelly,
Here, Dish has again provided no evidence to support its assertion that there are “thousands” of customers on the class list as to whom it would be entitled to an EBR defense; indeed, it has identified only 16 such persons. (See Doc. 56 at 22; Doc. 56-17.) As noted supra, unsubstantiated claims in a brief do not preclude class certification. See Adjabeng,
Moreover, even if there are several times this number, it appears highly likely that this defense can in fact be resolved on a class-wide basis, at least in large part. As Dr, Krakauer has demonstrated, (see Doc. 48 at 21-22; Doc. 75 at 17), Dish can prove this defense by, for example, offering a comprehensible customer list along with testimony about the list and which calls were to Dish customers; the factfinder could then determine whether those individuals as a group are not entitled to recover because of an EBR. To the extent there are a few situations where individual inquiry into the dates during which Dish is entitled to the EBR defense may be needed or where the parties dispute these dates, these issues appear to be easily manageable.
Resolution of the EBR defense does not involve “considerable individual inquiry,” and individual hearings will not be routinely necessary to determine if a putative class member was a Dish customer at the time of a call. Cf. Gunnells,
c. Did a putative class member contact SSN?
If an individual first contacted SSN and made an “inquiry or application” for Dish products or services, this would establish an EBR and allow SSN to contact that individual for up to three months. See 47 C.F.R. § 64.1200(f)(5). Dish contends that such calls cannot be determined without individualized inquiry. (Doc. 56 at 26-28.) Just as with its arguments on business numbers and EBRs with customers, Dish has done little more than speculate about the frequency of this potential issue and the difficulties it would raise in a class setting.
Moreover, to the extent Dish contends that the call records on which Dr. Krakauer relies are insufficient to allow Dish to identify every possible call to which it can assert this defense, (see Doc. 56 at 27-28; Doc. 56-23 at 3; Doc. 56-10 at ¶¶ 9, 12), that is not Dr. Krakauer’s fault. If the records that Dish and its affiliates keep do not allow Dish to identify every possible EBR, that should not preclude persons with valid claims from recovering, nor does it prevent class certification under Rule 23(b)(3).
d. Did a putative class member consent to be called on a NDNC number ?
Dish maintains that there is no TCPA violation if an individual voluntarily gives a telemarketer a number registered on the
Dish contends that this gives rise to individual issues, but it again provides only a handful of examples supported by unsworn statements in a brief.
3. Evaluation of predominance
“[Predominance under Rule 23(b)(3) requires that common issues predominate, but does not require all issues to be common.” In re Polyester Staple Antitrust Litig., No. 3:03CV1516,
These questions “can be resolved for each class member in a single hearing” and do not “tum[] on a consideration of the individual circumstances of each class member.” Thorn,
As discussed supra, the question of whether a putative class member was a Dish customer at the time of a call should be a simple and objectively verifiable task, requiring little more than reference to Dish’s own records. Dish’s claim that the putative class list contains “hundreds” or “a multitude” of non-actionable calls, (Doc. 56 at 23, 27), is not supported by evidence. While there are potentially a number of individual issues, these issues appear to apply to only a small number of class members and are straightforward. These minor, peripheral issues do not defeat the predominance of the central issue: whether the calls were made by Dish’s agent. The essential elements of the class members’ claims can be proven at trial with common,
The Court finds that common questions of fact and law predominate.
B. Superiority
A class action is the superior method of litigation in this case. Given the relatively small statutory damages, see 47 U.S.C. § 227(c)(5), the class members likely have little interest in controlling the litigation in this ease. See Fed.R.Civ.P. 23(b)(3)(A); Gunnells,
There is no evidence of any litigation begun by or against any class members, see Fed.R.Civ.P. 23(b)(3)(B); Gregory v. Finova Capital Corp.,
The Supreme Court has noted that, through Rule 23(b)(3), “the Advisory Committee sought to cover cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem,
Moreover, the legislative intent behind the TCPA supports the view that class action is the superior method of litigation. “[I]f the goal of the TCPA is to remove a ‘scourge’ from our society, it is unlikely that ‘individual suits would deter large commercial entities as effectively as aggregated class actions and that individuals would be as motivated ... to sue in the absence of the class action vehicle.’ ” Jay Clogg Realty Grp., Inc. v. Burger King Corp.,
III. Conclusion
Dr. Krakauer has met the threshold requirements for class certification by demonstrating that he is a member of both proposed classes and that the class members are ascertainable. It is undisputed that Dr. Krakauer’s proposed classes satisfy the numerosity, commonality, and adequacy of representation requirements of Rule 23(a)(1), (2), and (4). By demonstrating membership in the classes, Dr. Krakauer has satisfied the typicality requirement of Rule 23(a)(3). Dr. Krakauer’s proposed classes satisfy Rule 23(b)(3) as common questions of law and fact predominate, and class action is the superior method of adjudication. As to Dish’s arguments against predominance, the Court concludes that Dr. Krakauer has demonstrated that Dish may raise most of its defenses on a class-wide basis with minimal, if any, individual inquiry and that Dish’s other arguments are largely speculative; any individual issues that exist are minor and do not defeat the class action because common issues nevertheless predominate.
It is ORDERED that the motion for class certification, (Doc. 47), is GRANTED.
Notes
. The EBR defense does not apply to an individual’s internal do-not-call request. See 47 C.F.R. § 64.1200(f)(5)(i) ("The subscriber’s seller-specific do-not-call request ... terminates an [EBR] for purposes of telemarketing and telephone so
. In one Dish email, Dr. Krakauer’s complaint is characterized as one for "harassment,” Under "Nature of the complaint,” Dish marked "Yes” beside "Harassment, a malicious call pattern" and "No” beside "Caller hung up when asked for identity or to be added to DNC.” (Doc. 56-1 at 3; see also Doc. 56-4 at ¶ 12.)
. Dish separately challenged Ms. Verkhovskaya's report and analysis. (Doc. 57.) The Court denied Dish’s motion to strike and found her expert report and testimony admissible. (Doc. 110.) That Order discusses Ms. Verkhovskaya’s methodology in additional detail. (See Doc. 110 at 4-8.)
. Whether Dr. Krakauer's list of persons on SSN's IDNC list will persuade a factfinder on the merits is simply a common question of fact. See discussion supra.
. Indeed, Dish's statement that there are "a multitude" of instances of a putative class member initiating a call to SSN, (Doc. 56 at 27), is of no moment, as unsworn statements by counsel in briefs such as these are not evidence. See Adja~ beng,
. Dish contends that these calls would be exempt from the TCPA either because of the called individual's consent, see 47 C.F.R. § 64.1200(c)(2), (f)(14)(i); Mais v. Gulf Coast Collection Bureau, Inc.,
. As to the calls where Dish contends SSN first called an individual on a NDNC number and the individual asked to be called back, Dish cites an affidavit from an SSN general manager who testified that the call logs had a "Comments” field where SSN agents could enter notes or additional information about the calls. (See Doc. 56 at 30; Doc. 56-10 at ¶ 6.) This testimony says nothing about how frequently putative class members requested to be called back. Dish filed an exhibit including 10 numbers it contends are calls where an individual asked to be called back, but this conclusion appears to be based solely on Dish's counsel's interpretation of the comments. (See Doc. 56 at 30; Doc. 56-25.) Dish’s assertion that this happened to any calls in the putative class list is largely speculative and unsupported by evidence. See Adjabeng,
Moreover, to the extent that Dish has admissible evidence that these 10 calls were made in response to an individual's request to be called back, it can present such evidence, and the Court can easily manage any individual issues as to these few numbers and calls.