12 F. Supp. 3d 1292 | D. Nev. | 2014
Order Denying Motions to Dismiss and Granting Motion for Class Certification
I. BACKGROUND
Flemming Kristensen (“Kristensen”) filed a class action claiming that Credit Payment Services (“CPS”), a payday lender formerly known as MyCashNow.com, marketed its services to him by causing its agents to send an unauthorized text message to his cell phone. The alleged text message stated:
DO YOU NEED UP TO $5000 TODAY?
EASY QUICK AND ALL ONLINE AT:
WWW.LEND5K.COM
24 MONTH REPAY, ALL CREDIT OK
The Complaint alleged that the website in the text message — www.lend5k.com — automatically redirected to websites owned and operated by CPS and/or its agents who promoted CPS’s payday loan products. Upon the approval of a completed loan application, customers received a loan agreement with a truth-in-lending disclosure which identified CPS’s MyCash-Now.com entity as the lender. Kristensen further alleged that CPS and/or its agents sent text messages using a dedicated telephone number and automated dialing equipment, and that he did not consent to receive the above text message. Kristen-sen claims this conduct violated 47 U.S.C. § 227(b)(l)(A)(iii), a subsection of the federal Telephone Consumer Protection Act of 1991.
In February 2013, the Court denied CPS’s motion to dismiss and granted Kris-tensen’s motion to amend the Complaint to name additional defendants.
Kristensen alleges that, like CPS, Enova and Pioneer are short-term, payday lenders (collectively, the “Lender Defendants”). He contends that in October 2010, if not before, the Lender Defendants contracted with LeadPile to generate customers. LeadPile, in turn, allegedly contracted with various companies, including Click Media, to generate leads and drive web traffic to Defendants’ websites. Next, Click Media allegedly “directed” various unnamed “affiliate marketers to transmit en masse text messages containing ‘links’ that directed] consumers to various websites operated by Defendants and/or their agents.”
Kristensen asserts that “[w]hen a customer visits one of these websites, he or she is automatically redirected to websites controlled by Click Media, where consumers begin the loan application process in order to receive loans directly from [the Lender Defendants].”
Kristensen alleges that Defendants sent the above text message to him using “equipment that had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator to dial such numbers.”
The FAC pleads the same sole claim for relief as the Complaint: violation of 47 U.S.C. § 227(b)(l)(A)(iii). Kristensen seeks the following relief: (1) an order certifying the Class as defined in the FAC;
Click Media has moved to dismiss the FAC under Rule 12(b)(6) on the basis that Kristensen has insufficiently pled that either Click Media or its purported agents sent the text message to him.
One week after submitting his response, Kristensen filed a notice of supplemental authority.
Kristensen subsequently filed a motion
II. ANALYSIS
A. Motions to Dismiss
1. Legal Standard — Fed. R. Civ. P. 8, 12(b)(6)
A properly pleaded complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.”
District courts must apply a two-step approach when considering motions to dismiss.
2. Legal Standard — Telephone Consumer Protection Act
In pertinent part, the TCPA provides:
It shall be unlawful for any person ... to make any call (other than a call made ... with the prior express consent of the called party) using any automatic telephone dialing system ... to any tele*1300 phone number assigned to a ... cellular telephone service[.]35
“The term ‘automatic telephone dialing system’ [“ATDS”] means equipment which has the capacity ... to store or produce telephone numbers to be called, using a random or sequential number generator; and ... to dial such numbers.”
The Ninth Circuit has established three elements for a TCPA violation: “(1) the defendant called a cellular telephone number; (2) using an [ATDS]; (3) without the recipient’s prior express' consent.”
The 2013 FCC Ruling determined that vicarious liability under the TCPA, 47 U.S.C. § 227(b) in particular, is governed by federal common law principles of agency.
Kristensen argues that a 1995 FCC Ruling
Our rules generally establish that the party on whose behalf a solicitation is made bears ultimate responsibility for any violations. Calls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call. Accordingly, we revise our rules to clarify that telephone solicitations made by or on behalf of tax-exempt nonprofit organizations are not subject to our rules governing telephone solicitations.42
Kristensen failed to note that the FCC used the word “agent” in the sentence following the portion he quoted. Moreover, district courts in the Ninth Circuit have regularly applied traditional agency principles to claims under 47 U.S.C. § 227(b).
Kristensen argues that the Ninth Circuit held in Greenberg v. Sala
“The general principles of the federal common law of agency have been formulated largely based on the Restatement of Agency.”
The principles of agency law ... are well settled: [a]ctual authority consists of powers which a principal directly confers upon an agent, as well as those the principal causes or permits the agent to believe he or she possess.... Apparent authority focuses on third parties. It arises when a third party reasonably believes that the putative agent had authority to act on behalf of the principal and that belief can be traced to the principal’s own manifestations.48
The Restatement also imposes liability on a principal whose agent appoints a sub-agent to perform the duties that the principal authorized the agent to perform:
An agent who appoints a subagent delegates to the subagent power to act on behalf of the principal that the principal has conferred on the agent. A subagent acts subject to the control of the appointing agent, and the principal’s legal position is affected by action taken by the subagent as if the action had been taken by the appointing agent. Thus, a subagent has two principals, the appointing agent and that agent’s principal.49
The 2013 FCC Ruling recognized that an agency relationship could arise by ratification.
Whether an agency relationship exists is ordinarily a question of fact.
3. Application
The FAC pleads sufficient facts to render it plausible that the party who “made” the “call”&emdash;i.e., the party who actu
Thus, there was a “downhill” series of contractual relationships starting with the Lender Defendants down through Click Media, and the benefits of the text message (leads for potential payday lending customers) flowed back “uphill” through Click Media and LeadPile to the Lender Defendants. Kristensen has sufficiently pleaded a plausible agency relationship based on actual authority (arising through contractual relationships), apparent authority (based on a reasonable person’s perception of who authorized the sending of the text message), and ratification (based on the apparent benefits received by Click Media and LeadPile). Kristensen need not plead the identity of every player in the alleged scheme nor every nuance of the relationships among the Defendants; indeed, the information necessary to connect all the players is likely in Defendants’ sole possession.
Kristensen also sufficiently pleads that he did not consent to receive the text message and that the message was sent using an ATDS.
Accordingly, LeadPile’s and Click Media’s motions to dismiss are denied.
B. Motion for Class Certiñcation
1. Legal Standard
To obtain class certification, the plaintiff must prove the threshold requirement of “ascertainability”&emdash;that the proposed class’s membership can be determined by objective criteria.
The plaintiff must next prove that all four requirements of Rule 23(a) and at least one of the three requirements under Rule 23(b) are met.
The Court may consider inadmissible evidence to determine class certification.
Kristensen describes the proposed class as follows:
All individuals who were sent a text message from telephone numbers “330-564-6316,” “808-989-5389,” and “209-200-0084” from December 5, 2011 through January 11, 2012.62
2. Ascertainability
“In order for a proposed class to satisfy the ascertainability requirement, membership must be determinable from objective, rather than subjective, criteria.”
Here, objective criteria determine who are class members&emdash;all those who were sent a text message from one of three phone numbers during an approximately one-month period. Data from T-Mobile calling lists can be used to identify the individual class members. Prospective plaintiffs can readily identify themselves as class members based on receipt of the text message. Consent is not at issue because the class definition does not turn on consent, and consent is more appropriately addressed under Rule 23(b)(3)’s predominance inquiry. Individual mini-trials will not be necessary to determine who was sent the text message from the relevant phone numbers during the relevant time period. Thus, the ascertainability requirement is met.
3. Rule 23(a)
In pertinent part, Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that join-der of all members is impracticable [numerosity];
(2) there are questions of law or fact common to the class [commonality];
*1304 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and
(4) the representative parties will fairly and adequately protect the interests of the class [adequacy].
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.”
A district court should certify a class only if the court “is satisfied, after a rigorous analysis,” that the Rule 23 prerequisites have been met.
a.Numerosity
Based on evidence Kristensen obtained from T-Mobile, Defendants sent vi-olative text messages en masse to 98,779 individuals. Joinder of so many persons would undoubtedly be impractical.
b.Commonality
Commonality is inherently satisfied if Rule 23(b)(3)’s predominance requirement is met.
c.Typicality
“The test of typicality is whether other [class] members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.”
Kristensen and the purported class members allegedly received identical text messages from the same senders in a specified time period. This is more than sufficient for typicality.
d. Adequacy
“To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?”
Kristensen has met his burden of demonstrating he is an adequate class representative. The alleged discovery misconduct is insufficient to defeat Kristen-sen’s adequacy. There are no indications that Kristensen has any conflicts of interest, and he appears sufficiently motivated to vigorously pursue the interests of absent class members.
Defendants do not challenge the adequacy of Edelson PLC as class counsel.
4. Rule 23(b)
A class action may be maintained if Rule 28(a) is satisfied and if: ...
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(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.85
a. Predominance
“The predominance inquiry of Rule 23(b)(3) asks whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”
Newberg on Class Actions articulates a practical, two-step inquiry.
Second, the court must determine if the common issues predominate. The analysis is pragmatic and is more qualitative than quantitative.
Kristensen correctly identifies several common issues that will generate common answers applicable class-wide: (1) whether the equipment used to send the text messages is an ATDS, as defined by statute; (2) whether Defendants are vicariously liable for the text messages; and (3) whether the class members expressly consented to receive the text messages.
As set forth above, vicarious liability turns on the federal common law of agency and can arise from actual authority, apparent authority, or ratification. Actual authority depends only on relationships among the Defendants. Ratification depends on Defendants’ post-message behavior without concern for any conduct by the class members. Apparent authority depends on whether a reasonable person would believe that the sender of the text messages, or the person that caused the text messages to be sent, had authority to act on behalf of Defendants.
The parties dispute whether consent is an element of the prima facie case or an affirmative defense, but, as the Fifth Circuit has held, that issue is irrelevant for class certification.
The Ninth Circuit has held that in the absence of any evidence of consent by the defendant, consent is a common issue with a common answer.
Defendants have not submitted any evidence of express consent. Their reliance on James Gee (of AC Referral Systems) and Michael Ferry (of 360 Data Management and Absolute ROI) is misplaced, as neither has personal knowledge whether Kristensen or the other purported class members consented when they visited one of the “hundreds” of websites that Defendants allege were the original sources of the cell phone numbers. In addition, AC Referral did not appear to have a mechanism to verify consent. Finally, the relevant records of AC Referral and 360 Data Management apparently are no longer available.
Also, AC Referral acquired the cell phone numbers from two sources — 360 Data Management LLC and Identity Defender — who in turn obtained the numbers from Absolute ROI. AC Referral sent the text messages, and AC Referral was under contract with defendant Click Media for marketing services. Kristensen correctly argues that, in light of the absence of evidence from Defendants about consent, a review of these entities’ procedures as to obtaining consent should produce a common answer.
If Defendants develop proof of consent that requires burdensome, individualized inquiries, the Court can take remedial measures up to and including decertification.
b. Superiority
To assess superiority, the Court examines the four factors of Rule 23(b)(3)(A)-(D).
i. Class members’ interests in individually controlling the prosecution or defense of separate actions.
“Where damages suffered by each putative class member are not large, this factor weighs in favor of certifying a class action.”
ii. Extent and nature of any litigation concerning the controversy already begun by or against class members.
The Court is unaware of any related, ongoing litigation.
iii.Desirability or undesirability of concentrating the litigation of the claims in the particular forum.
Defendants have not challenged the District of Nevada as an improper forum.
iv.Likely difficulties in managing a class action.
The Court does not perceive any difficulties. If any arise, such as individualized inquiries into consent, the Court can take remedial measures.
5. Rule 23(g)&emdash;Class Counsel
Defendants do not challenge Edelson PLC as class counsel. Having performed an independent review of the materials submitted by Kristensen, the Court approves Edelson PLC as class counsel.
III. CONCLUSION
In accord with the above, the Court hereby ORDERS:
1. Click Media’s motion to dismiss (Dkt. No. 65) is DENIED.
2. LeadPile’s motion to dismiss (Dkt. No. 67) is DENIED.
3. Kristensen’s motion for class certification (Dkt. No. 113) is GRANTED.
4. Under Fed.R.Civ.P. 23(c), the following class is certified:
All individuals who were sent a text message from telephone numbers “330-564-6316,” “808-989-5389,” and “209-200-0084” from December 5, 2011 through January 11, 2012.
4. Under Fed.R.Civ.P. 23(g), Edelson PLC is appointed as class counsel.
. (Dkt. No. 1 at 4; Dkt. No. 35 at 6.)
. (Dkt. No. 33.)
. (Dkt. No. 35.)
. (Id. ¶ 31 (emphasis in original).)
. (Id. ¶ 32.)
. (Id. ¶ 35.)
. (Id. ¶ 36 n. 2.)
. (Id. ¶ 37.)
.(Id. ¶ 48.)
. (Id. ¶ 49.)
. Kristensen’s Motion for Class Certification alleges other facts, but the Court’s analysis of the Motions to Dismiss is based solely on the facts alleged in the FAC. Where appropriate, the additional facts alleged in the Motion for Class Certification are discussed in the section below addressing class certification.
. The proposed class description in the Motion for Class Certification supersedes the description in the FAC.
. (Dkt. No. 65.)
. (Dkt. No. 67.)
. (Dkt. No. 71.)
. (Dkt. No. 72.)
. In the Matter of the Joint Petition Piled by Dish Network, LLC, the United States of Am., & the States of Cal., Ill., N.C., & Ohio for Declaratory Ruling Concerning the Tel. Consumer Prot. Act (TCPA) Rules, 28 F.C.C.R. 6574 (2013) [the "2013 FCC Ruling"').
. (Dkt. No. 72-1 at 6, 7, 23.)
. Ashcroft v. Iqbal, 556 U.S. 662, 696, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. (Dkt. No. 113)
. (Dkt. Nos. 65, 67, 113.)
. Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
. Iqbal, 556 U.S. at 696, 129 S.Ct. 1937 (internal quotation marks and citation omitted).
. Id. at 679, 129 S.Ct. 1937.
. Id.; Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247-48 (9th Cir.2013).
. Iqbal, 556 U.S. at 679, 129 S.Ct 1937; Brown, 724 F.3d at 1248.
. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
. Id. at 679, 129 S.Ct. 1937.
. Id. at 663, 129 S.Ct. 1937.
. Id. at 679, 129 S.Ct. 1937 (internal quotation marks and citation omitted).
. Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
. 47 U.S.C. § 227(b)(1 )(A)(iii).
. Id. § 227(a)(1).
. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 (9th Cir.2009).
. Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.2012).
. 2013 FCC Ruling, 28 F.C.C.R. at 6586-87.
. See McMaster v. U.S., 731 F.3d 881, 891-93 (9th Cir.2013) (citing Chevron v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).
. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 10 F.C.C.R. 12391 (1995) [the “1995 FCC Ruling"].
. 1995 FCC Ruling, 10 F.C.C.R. at 12397.
. E.g., Thomas v. Taco Bell Corp., 879 F.Supp.2d 1079, 1084 (C.D.Cal.2012); In re Jiffy Lube Int’l Inc., Text Spam Litig., 847 F.Supp.2d 1253, 1257 (S.D.Cal.2012); Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1168, 1171 (N.D.Cal.2010).
. 822 F.2d 882 (9th Cir.1987).
. Thornes v. IMB Lender Bus. Process Servs., Inc., 2011 WL 677428 (W.D.Wash.2011).
. See Iqbal, 556 U.S. at 696, 129 S.Ct. 1937.
. Doe I v. Unocal Corp., 395 F.3d 932, 972 (9th Cir.2002), on reh’g en banc, 403 F.3d 708 (9th Cir.2005).
. In re Fresh & Process Potatoes Antitrust Litig., 834 F.Supp.2d 1141, 1167-68 (D.Idaho 2011) (citing 2A CJ.S. Agency § 133; Restatement (Third) of Agency § 2.01 (2006)).
. Restatement (Third) of Agency § 3.15.
. 2013 FCC Ruling, 28 F.C.C.R. at 6587.
. Id. (citing Restatement (Third) of Agency § 4.01).
. Restatement (Third) of Agency § 4.01(2).
. Id. § 4.01 cmt. b.
. Nat’l Football Scouting Inc. v. Cont’l Assur. Co., 931 F.2d 646, 649 (10th Cir.1991).
. See Iqbal, 556 U.S. at 696, 129 S.Ct. 1937.
. See Charvat v. Allstate Corp., - F.Supp.3d -, No. 13-C-7104, 2014 WL 866377 at *2 (N.D.Ill. Mar. 5, 2014); In re Portfolio Recovery Assocs., LLC, Tel. Consumer Protection Act Litig., No. 11-MD2295, 2014 WL 223557 at *3 (S.D.Cal. Jan. 8, 2014); Jiffy Lube, 847 F.Supp.2d at 1258; Kramer, 759 F.Supp.2d at 1171.
. Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1071 n. 3 (9th Cir.2014); Xavier v. Philip Morris USA Inc., 787 F.Supp.2d 1075, 1089 (N.D.Cal.2011).
. Comcast Corp. v. Behrend, - U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); Wal-Mart Stores, Inc. v. Dukes, - U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (“A party seeking class certification must affirmatively demonstrate his compliance with the Rule&emdash;that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”).
. See e.g., Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 551 n. 88 (C.D.Cal.2012).
. Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 599 (C.D.Cal.2008) ("Unlike a summary judgment motion under Fed. R.Civ.P. 56, a motion for class certification
. Keilholtz v. Lennox Hearth Products Inc., 268 F.R.D. 330, 337 n. 3 (N.D.Cal.2010) (internal quotation marks and citation omitted).
. (Dkt. No. 114 at 4.)
. Xavier, 787 F.Supp.2d at 1089 (citing Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir.2006)).
. Vandervort v. Balboa Capital Corp., 287 F.R.D. 554, 558 (C.D.Cal.2012).
. 3 William B. Rubenstein, Newberg on Class Actions § 3:3 (5th ed.2013).
. Id. § 3:6; Vandervort, 287 F.R.D. at 557 ("A class must be ascertainable without inquiring into the merits of the case.”).
. Newberg on Class Actions § 3:6.
. See Vandervort, 287 F.R.D. at 557-58; Ague v. Papa John’s Int’l, Inc., 286 F.R.D. 559 (W.D.Wash.2012); Reliable Money Order, Inc. v. McKnight Sales Co., Inc., 281 F.R.D. 327, 331 (E.D.Wis.2012); CE Design Ltd. v. Cy’s Crabhouse AT., Inc., 259 F.R.D. 135, 141 (N.D.Ill.2009).
. Dukes, 131 S.Ct. at 2551.
. Mario v. U.P.S., 639 F.3d 942, 947 (9th Cir.2011).
. Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
. Dukes, 131 S.Ct. at 2551.
. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n. 8 (9th Cir.2011) (citing Dukes, 131 S.Ct. at 2552 n. 6).
. See Kavu v. Omnipak Corp., 246 F.R.D. 642, 646-47 (W.D.Wash.2007).
. See Fed.R.Evid. 1006; Keilholtz v. Lennox Hearth Products Inc., 268 F.R.D. 330, 337 n. 3 (N.D.Cal.2010); Parkinson, 258 F.R.D. at 599.
. (Dkt. No. 148 at 9 n. 4.)
. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 609, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
. Newberg on Class Actions § 3:27.
. Ellis, 657 F.3d at 984 (internal quotation marks and citation omitted).
. Id.
. Meyer, 707 F.3d at 1042 (internal quotation marks and citation omitted).
. Ellis, 657 F.3d at 985 (internal quotation marks and citations omitted).
. Id.
. See Newberg on Class Actions § 3:54.
. Fed.R.Civ.P. 23(b)(3).
. In re Wells Fargo Home Mortgage Overtime Pay Litig., 571 F.3d 953, 957 (9th Cir.2009) (internal quotation marks and citation omitted).
. Id.
. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996).
. Newberg on Class Actions § 4:49.
. Id.
. Id.
. Id.
. Id. §§ 4:49, 4:51.
. See id. § 4:50 (internal quotation marks and citation omitted).
. Dukes, 131 S.Ct. at 2551 (“What matters to class certification ... is not the raising of common ‘questions’&emdash;even in droves&emdash;but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” (internal quotation marks and citation omitted, emphasis in original)).
. See In re Fresh & Process Potatoes Antitrust Litig., 834 F.Supp.2d at 1167-68.
. Gene And Gene LLC v. BioPay LLC, 541 F.3d 318, 327 (5th Cir.2008).
. Gene And Gene, 541 F.3d at 328.
. Meyer, 707 F.3d 1036.
. Fields v. Mobile Messengers Am., Inc., No. C-12-05160, 2013 WL 6073426 at *4 (N.D.Cal. Nov. 18, 2013).
. Stern v. DoCircle, Inc., No. SACV-12-2005, 2014 WL 486262 at *8 (C.D.Cal. Jan. 29, 2014).
. See Meyer, 707 F.3d 1036; Jamison v. First Credit Servs., 290 F.R.D. 92, 108 (N.D.Ill. 2013); Silbaugh v. Viking Magazine Servs., 278 F.R.D. 389, 393 (N.D.Ohio 2012).
. Cf. Agne, 286 F.R.D. at 566 n. 6 (‘‘[I]t would be unfair to deny class certification because of the potential difficulty of identifying the class members where that difficulty is mostly due to the fact that [the defendant] destroyed the call lists that it used.”).
. See Agne, 286 F.R.D. at 567; Kavu, 246 F.R.D. at 647.
. See Stern, 2014 WL 486262 at *8; Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292, 295 (N.D.Cal.2013).
. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir.2001), opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir.2001).