ORDER DENYING MOTION FOR CLASS CERTIFICATION
Before the Court is Plaintiff Adrienne Moore’s motion for class certification. ECF No. 57. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby DENIES Plaintiffs motion for class certification.
I. BACKGROUND
A. Factual Allegations
Defendant Apple, Inc., a California corporation headquartered in Cupertino, California is “one of the world’s largest and most popular maker of ... wireless devices, such as the various versions of the iPhone and iPad.” Compl. ¶ 6. Apple’s wireless devices work on Apple’s software operating system, commonly known as “iOS.” Id. Apple released iOS 5 in October 2011 and introduced its “iMessage service and Messages client application” as part of iOS 5. Id. Plaintiff Adrienne Moore is a resident of California. Id. ¶ 5. In March 2011, Plaintiff purchased an iPhone 4. See Declaration of Jeffrey Kohl-man in support of Apple’s Motion to Dismiss, ECF No. 18; Compl. ¶5. Plaintiff subscribed to Verizon Wireless for her wireless service needs. Compl. ¶ 5. At some point after iOS 5’s release in October 2011, but before April 16, 2014, Plaintiff updated her iPhone 4 to iOS 5, which included iMessage and Messages. Id. After updating her iOS, Plaintiffs iPhone 4 “began using by default the iMessage service to route text messages from and to her through Apple’s Messages application” when the messages involved other Apple devices running iOS 5 or later. Id. On or about April 16, 2014, Plaintiff replaced her iPhone 4 with a Samsung Galaxy S5. Id. As a result of that switch, Plaintiff alleges that she has failed to receive “countless” text messages sent to her from Apple device users. Id.
Plaintiff alleges that Apple failed to disclose that use of iMessage and Messages would result in undelivered messages if an iPhone user switched to a non-Apple device. More specifically, Plaintiff alleges that Apple
1. Text Messages, ¡Message, and Messages
Text messaging, or “texting,” is the act of sending or receiving “brief, electronic message[s] between two or more mobile phones, or fixed or portable devices over a phone network.” Compl. ¶ 7. Text messaging is the “most widely used mobile data service.” Id. Texting originally only referred to messages sent using the Short Messages Service (“SMS”), but now also encompasses messages containing media such as pictures, videos, and sounds (“MMS”). Id. When using SMS to send a text message, the message is transmitted in SMS form to an “SMS Center,” where it is then routed to a transmission tower operated by the service network. Id. The transmission tower then sends the message to the recipient’s wireless device through the device’s control channel. Id. Once a message is received, the device notifies the recipient of receipt. Id. This process is the same for MMS messages. Id. In light of text messaging’s popularity with users, the major cellular service networks, including Verizon Wireless, provide their users with the ability to send and receive text messages in this fashion. Id. ¶¶ 9-10.
Apple wireless devices are capable of sending SMS and MMS messages as described above, but Apple also provides ¡Message, a “messenger service,” that uses data networks such as Wi-Fi, 2G, 3G, and LTE networks to send text messages, pictures, video, audio, documents, contact information, and group messages to other Apple devices with the Messages application. Id. ¶ 5. Rather than incurring an SMS charge to send a text message, ¡Message text messages are “treated as ... additional data transferís].” Id. ¶ 12. An Apple device user with iOS 5 or higher sending a text message to another Apple device equipped with iOS 5 or higher will automatically use Apple’s Messages application to send text and media ¡Messages rather than using SMS. Id. ¶ 11.
2. Plaintiffs Experiences
On or about April 16, 2014, Plaintiff replaced her iPhone 4 with a Samsung Galaxy S5. Id. Plaintiff retained her same cellular telephone number and continued to subscribe to Verizon Wireless. Id. The non-Apple device did not have Messages and could not send or receive ¡Messages. Id. ¶¶ 13-16. “Shortly after” Plaintiff switched to the Samsung device, Plaintiff noticed she was not receiving text messages she expected to receive from users of Apple devices. Id. ¶ 18. After this initial discovery, Plaintiff contacted her service provider, Verizon Wireless, which informed her that she needed to “turn off’ Messages on her old iPhone. Id. ¶ 19. After doing so, Plaintiff began to receive text messages from some Apple device users, but not from others. Id. Plaintiff again contacted Verizon Wireless and was told that this “had been an issue when people switch from an Apple ... device to a non-Apple phone,” and after attempting additional trouble shooting, Plaintiff was referred to Apple for further assistance. Id. ¶ 20.
Plaintiff alleges that the Apple representative informed her that some Apple device users might not be using the latest iOS, which would result in Plaintiff not receiving their text messages. Id. ¶21. The Apple representative then suggested that Plaintiff have the text message senders update to the latest iOS, delete and then re-add Plaintiff as a contact, or start a new text message “conversation” between Plaintiff and the Apple user. Id. Plaintiff attempted some of these proposals, but they were unsuccessful. Id. ¶ 22. Plaintiff also contends these solutions do not address the threshold issue that Plaintiff is unable to discern which of her contacts are using Messages to contact her because she is not receiving their messages. Id.
Plaintiff is not the only former Apple device user to encounter the problem of unde
3. Apple’s Response
Plaintiff contends that Apple was aware of the iMessages problem as early as January 2012 based on internal Apple emails discussing a January 12, 2012 news article regarding the iMessage “bug,” and possible causes for the issue. See Katriel Decl. Exhs. 4, 5. Plaintiff further contends that the “problem pervades to this day.” Mot. at 3. Plaintiff cites internal emails from Google, Inc., from early 2015 indicating that the iMessage problem was not only persisting, but that the “iMessage deregistration tool doesn’t work.” Katriel Decl. Exh. 8. Wireless service providers, including AT & T, Verizon, Sprint, and T-Mobile, also documented the iMessage problem for former iPhone users who had switched to non-Apple devices. See Katriel Decl. Exh. 9 (AT & T document); Exh. 19 (Apple email discussing Verizon and AT & T users); Exh. 20 (email from T-Mobile to Apple); Exh. 21 (Apple email discussing Sprint). Internal AT & T documents indicate that former iPhone users’ inability to receive text messages from iPhone users was a major driver of calls to AT & T’s customer service call center. Id. at ATT000332. These internal documents appear to indicate that disruptions in text message delivery could occur regardless of whether or not former iPhone users complied with Apple’s recommended deregistration process. See id.; Exh. 8 (Google email). When asked if the iMessage issue was specific to any particular wireless carrier or to a specific non-Apple device, Apple’s corporate representative responded “Not that I’m aware of.” Id. Exh. 17 at 30:9-23.
In addition to these third-party documents describing the scope of the iMessage problem, Plaintiff also points to Apple’s own internal documents apparently discussing how Apple’s “so-called fixes” failed to address the disruptions in text message delivery. More specifically, Plaintiff cites internal Apple emails from May 2014 explaining that “[e]ven when we unregister you, the client doesn’t care---- [E]ven if you do everything right, all of your friends have a client that never does another lookup.” Katriel Decl. Exh. 13 at APL-Backhaut_00031354. Other internal Apple emails note that hundreds of former iPhone users reported attempting de-activation but were still not receiving text messages from Apple device users. See id. at APL-Backhauk.00031355. Plaintiff also cites an outside email from AT & T to Apple regarding the “growing nature of the problem” and the “growing duration of text message disruption periods that users” were experiencing. Mot. at 7 (citing Katriel Decl. Exh. 13 at APL-Backhaut_00031356). According to Plaintiff, it was only after these discussions that Apple provided a public disclosure on its website that failure to turn off iMessage before switching from an Apple to a non-Apple device “might” result in Apple devices “continu[ing] to try to send you messages using iMessage, instead of SMS or MMS, for up to 45 days.” Katriel Decl. Exh. 14.
B. Procedural History
Plaintiff filed this putative class action Complaint on May 15, 2014. ECF No. 1.
Defendant filed its answer to Plaintiffs surviving tortious interference with contract claim and UCL claim predicated on the tor-tious interference claim on November 24, 2014. ECF No. 37.
On May 14, 2015, Plaintiff filed the instant motion for class certification.
On June 25, 2015, Defendant filed a motion for summary judgment. ECF No. 87. On July 1, 2015, Defendant filed a motion to shorten time on its motion for summary judgment, ECF No. 90, which Plaintiff opposed on July 5, 2015, ECF No. 93. The Court denied Defendant’s motion to shorten time on its motion for summary judgment on July 7, 2015. ECF No. 94. Defendant’s motion for summary judgment remains set for hearing on October 15, 2015.
C. Class Definition
Plaintiff moves to certify the following class:
All persons within the United States who, during the time period October 12, 2011 to the present, switched their wireless telephone account by porting their cellular telephone number from an Apple iPhone device that was operated by iOS version 5 or later to a non-Apple cellular telephone.
Mot. at 1. Plaintiff seeks to certify a damages class pursuant to Federal Rule of Civil Procedure 23(b)(3).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 23, which governs class certification, has two sets of distinct requirements that Plaintiff must meet before the Court may certify a class. Plaintiff must meet all of the requirements of Rule 23(a) and must satisfy at least one of the prongs of Rule 23(b).
Under Rule 23(a), the Court may certify a class only where “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Courts refer to these four requirements, which must be satisfied to maintain a class action, as “numerosity, commonality, typicality and adequacy of representation.” Mazza v. Am. Honda Motor Co.,
In addition to meeting the requirements of Rule 23(a), the Court must also find that Plaintiff has satisfied “through evidentiary proof’ one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, — U.S. -,
“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’ ” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -,
III. DISCUSSION
Plaintiff moves to certify a nationwide damages class of former iPhone users pursuant to Federal Rule of Civil Procedure 23(b)(3). The Court addresses Plaintiffs standing to sue before turning to the requirements of Rule 23(a) and Rule 23(b).
A. Article III Standing
“In a class action, standing is satisfied if at least one of named plaintiff[s] meets the requirements.” Bates v. United Parcel Serv., Inc.,
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife,
On a motion for class certification, this means Plaintiff must show standing “through evidentiary proof.” Comcast,
Here, Defendant contends that Plaintiff has failed to offer “evidentiary proof’ showing that Plaintiff has suffered an injury-in-faet that is fairly traceable to Defendant. More specifically, Defendant contends that Plaintiff has put forth no evidence that Plaintiff failed to receive any text messages, that any undelivered text messages were sent via iMessage, or that iMessage caused any alleged nondelivery. Opp. at 7.
However, the Court finds that Plaintiff has put forth evidence of injury-in-fact. More specifically, Plaintiff has submitted exhibits and responses to interrogatories indicating that current Apple device users using iMessage sent Plaintiff text messages that Plaintiff did not receive on her non-Apple device. For instance, Plaintiff has submitted a screenshot showing that she failed to receive a text message sent by an individual who apparently was using an Apple device at the time. See Katriel Reply Decl. Exh. 8. Moreover, in response to Apple’s interrogatories, Plaintiff also identified messages from her supervisor that were apparently sent from an iPhone but not received on Plaintiffs non-Apple device. See Katriel Decl. Exh 29. Plaintiff further provided emails between herself and her supervisor substantiating Plaintiffs interrogatory response. See Ka-triel Reply Decl. Exh. 7. Plaintiff has therefore done more than merely allege injury-in-fact, she has provided evidentiary proof of her injury. See Comcast,
As to causation, the Court finds that Plaintiff has sufficiently put forth evidentiary support that her undelivered text messages are fairly traceable to Defendant’s alleged wrongful conduct. Here, Defendant contends that Plaintiff can only speculate that Defendant’s iMessage system caused Plaintiffs injury, as opposed to some other cause. However, for Article III standing purposes, a “causal chain does not fail simply because it has several links, provided those links are not hypothetical or tenuous and remain plausible.” Wash. Env’tl. Council v. Bellon,
Here, as discussed in the factual background, Plaintiff has submitted evidence that iMessage apparently caused former iPhone users to not receive text messages sent from Apple device users. See Katriel Decl. Exh. 8 (internal Google email regarding iMessage issue); Exh. 9 (AT & T document); Exh. 19 (Apple email discussing Verizon and AT & T users); Exh. 20 (email from T-Mobile to Apple); Exh. 21 (Apple email discussing Sprint). There is no dispute that Plaintiff has put forth evidence that she is a former iPhone user. Moreover, Plaintiff attempted to troubleshoot the problem, and has submitted proof that she contacted Defendant and her wireless service provider. Plaintiff further avers that she attempted the various
In sum, the Court finds that Plaintiff has satisfied the standing requirements under Article III.
B. Class Members’ Article III Standing and Rule 23
In addition to challenging whether Plaintiff has satisfied her burden of showing Article III standing, Defendant further contends that the proposed class includes members who lack standing. More specifically, Defendant argues that Plaintiffs proposed class definition includes individuals who have suffered no actual injury. Defendant contends that the inclusion of proposed class members that lack Article III standing defeats class certification under the Ninth Circuit’s decision in Mazza.
As a threshold matter, the Court notes that neither party directly addresses whether Defendant’s argument with respect to the putative absent class members’ standing is a jurisdictional argument under Article III or an argument against certification under Federal Rule of Civil Procedure 23. The Court acknowledges, as have many other district courts in this Circuit, that the Ninth Circuit’s decision in Mazza appears to be in tension with prior Ninth Circuit authority. See, e.g., Waller v. Hewlett-Packard Co.,
At the heart of this dispute is a single sentence from the Ninth Circuit’s decision in Mazza: “[N]o class may be certified that contains members lacking Article III standing.”
To the extent Defendant relies on Mazza’s statement as overruling the Ninth Circuit’s prior decisions in Bates and Steams, the Court concludes that Defendant’s interpretation of Mazza is incorrect. The Mazza court cited both Bates and Steams and relied on those eases to conclude that class members had suffered an injury-in-fact. See
Accordingly, the Court turns to whether Plaintiffs class definition is over-broad under Mazza and Rule 23. Here, Apple contends that there are three groups of proposed class members who suffered no injury: (1) persons who experienced no disruption in their text message services; (2) persons who failed to receive text messages because of technical issues unrelated to the iMessages system; and (3) persons who failed to receive text messages because of restrictions in their wireless contracts. Opp. at 9-10. As discussed above, the Court concludes that Defendant’s argument goes to the propriety of certification under Rule 23, not jurisdiction. The Court therefore addresses whether Plaintiffs proposed class definition of “[a]ll persons within the United States who, during the time period October 12, 2011 to the present, switched their wireless telephone account by porting their cellular telephone number from an Apple iPhone device that was operated by iOS version 5 or later to a non-Apple cellular telephone,” is over-broad under Rule 23 because it contains members who lack Article III standing. See Mazza,
As a threshold matter, the Court agrees with Defendant that Plaintiffs proposed class includes individuals who, by definition, could not have been injured by Defendant’s alleged wrongful conduct. While many wireless service agreements may include the contractual right to send and receive text messages, Plaintiff does not and cannot contend that every proposed class member’s wireless service agreement included the right to receive text messages. See Mot. at 18 (arguing that “virtually all” agreements include texting). As Defendant puts it, “Apple cannot interfere with contractual rights these putative class members never had,” Opp. at 13. Unlike proposed class members who, by happenstance, may not have experienced disruption of text message services due to Defendant’s alleged wrongful conduct, proposed class members who did not have a contractual right to receive messages at all could not have been injured. Under Mazza, such a class cannot be certified. See
Furthermore, the inclusion of class members whom, by definition, could not have been injured is not only problematic because it demonstrates the overbreadth of the proposed class, it is also indicative of the individualized inquiries that would be necessary to determine whether a class member has suffered any injury in the first place. In response, Plaintiff contends that all class members were injured and “commonly impacted” because “all paid for a wireless service agreement text messaging feature, and yet all were subject to having their text messaging disrupted due to Apple’s iMessage flaw.” Reply at 6. However, Plaintiffs argument rests on two erroneous assumptions: (1) that all class members actually paid or contracted for text messaging services; and (2) that all class members actually experienced a disruption in text messaging services due to iMes-sage. As discussed above, Plaintiffs proposed class necessarily includes individuals who did not pay or contract for text messaging services. Indeed, Plaintiffs own evidence indicates that there are material variations in wireless service agreements, such that a proposed class member could have unlimited, limited, or no right to text messages at all. See infra Part C.2. Moreover, as the Court discusses in depth below, the question of whether an individual class member actually experienced a disruption in text messaging services, and whether that disruption was caused by iMessage is not subject to
In sum, the Court finds that Plaintiffs proposed class is overbroad and cannot be certified under Mazza because it necessarily includes individuals who could not have been injured by Defendant’s alleged wrongful conduct as a matter of law. See Mazza,
C. Rule 23 Requirements
Plaintiff moves to certify her proposed class as a Rule 23(b)(3) damages class. As discussed above, the Court finds that Plaintiffs proposed class is overbroad and that certification would be inappropriate under the Ninth Circuit’s decision in Mazza. Moreover, for the reasons discussed below, the Court finds that class certification would be inappropriate because additional individual issues predominate over any common questions of law or fact. In addition to the inclusion of individuals who could not have suffered any injury as a matter of law, the Court concludes that the individualized inquiries necessary to determine whether an individual has, in fact, suffered an injury defeats predominance. The Court begins with the legal standard for predominance before addressing the individualized issues that defeat predominance in the instant case.
1. Predominance
The predominance inquiry of Rule 23(b)(3) “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor,
Undertaking the predominance analysis requires some inquiry into the merits, as the Court must consider “how a trial on the merits would be conducted if a class were certified.” Gene And Gene LLC v. BioPay LLC,
The Court’s predominance analysis “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class, a process that ultimately prevents the class from degenerating into a series of individual trials.” Gene And Gene LLC,
Importantly, the predominance inquiry is a pragmatic one, in which the Court does more than just count up common issues and individual issues. Wright & Miller, Federal Practice & Procedure § 1778 (3d ed.2005) (noting that “the proper standard under Rule 23(b)(3) is a pragmatic one, which is in keeping with the basic objectives of the Rule 23(b)(3) class action”). As the Seventh Circuit recently stated, “predominance requires a qualitative assessment too; it is not bean counting.” Butler v. Sears, Roebuck & Co.,
B. Application of the Predominance Standard
Here, Plaintiff has alleged two claims against Defendant: tortious interference with contract and a derivative UCL claim. Under California law, a claim for tortious interference with contract requires “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” Piping Rock Partners, Inc. v. David Lerner Assocs., Inc.,
In support of her motion for class certification, Plaintiff identifies the following substantive issues as raising common, predominating questions: (1) class members’ contractual right to receive text messages; (2) Defendant’s knowledge of the contractual relationship between class members and their wireless service providers; (3) Defendant’s intent; (4) and the factual question of whether Defendant’s iMessage system “actually disrupts the delivery of text messages sent from iPhones to non-Apple phones of former iPhone users.” Mot. at 21. Defendant challenges whether these issues actually do generate “common answers” as required to satisfy the commonality requirement under Rule 23(a), and, relatedly, whether individual issues predominate over any common issues.
a. Material Variations in Contract Terms and Actual Breach or Interference
First, the Court finds that Plaintiff has failed to carry her burden of persuasion with respect to establishing that class members’ contractual right to receive text messages will actually generate common answers and that individual issues will not predominate. See Comcast,
Not only are there proposed class members who did not actually pay or contract for the right to receive text messages, there are variations in the wireless service agreements that govern the receipt of text messages. Even Plaintiffs own expert concedes that some wireless service agreements involve a fixed price for unlimited service, others provide service “up to an agreed maximum of service consumed,” and still others provide for separate billing with respect to each incoming or outgoing text message. See Dwyer Decl. ¶ 22. These variations are relevant, as restrictions in a wireless service contract could mean that an individual did not receive text messages because he or she had exceeded the maximum number of text messages paid for, or had affirmatively opted not to receive text messages either by “blocking” a particular sender or by declining to pay for text messaging services. See Opp. at 10; see also Katriel Decl. Exh. 36 (T-Mobile webpage referencing “Message Blocking”). A proposed class member thus could have experienced (or not experienced at all) a disruption in text messages because of the particular terms of his or her individual wireless service agreement. In order to determine the fact of injury, the Court would therefore have to evaluate each individual’s wireless service agreement. Where determining the fact of injury would require examining each individual class member’s contract, other courts have also concluded that “legal and factual questions common to the class, significant as they may be,” are insufficient to overcome the individualized inquiries necessary to determine liability. Gibson,
Plaintiff contends that such individualized inquiry would be unnecessary, based on the wireless “carriers’ own documentation.” Mot. at 18. Plaintiff has submitted webpag-es from Verizon, AT & T, and T-Mobile that appear to answer “Frequently Asked Questions” regarding text messaging. See Katriel Decl. Exhs. 35 (Verizon); 36 (T-Mobile); 37 (AT & T). According to Plaintiff, “proving whether Class members’ wireless plans granted them a right to obtain text messaging is a question that can be addressed by common evidence obtained from the carriers, without the need to read through every individual Class members’ wireless plan.” The very evidence that Plaintiff has submitted from these wireless carriers, however, supports the opposite conclusion. For example, Plaintiff quotes language from the Verizon webpage which states “Text messaging is automatically included with the wireless services.” See Mot. at 18; Katriel Decl. Exh. 35. Plaintiff neglects to quote the immediately following language which provides: “If you have The MORE Everything Plan, you get unlimited ... text ... messaging with the price of the plan. For plans that don’t include a text messaging allowance, you can pay for text messaging on a pay as you go basis.” Katriel Decl. Exh. 35 (emphasis added). Similarly, the T-Mobile document that Plaintiff relies on also alludes to plans which “may include a monthly allotment of messages,” in addition to the “unlimited” language that Plaintiff quotes. Katriel Decl. Exh. 26. These documents show that while some proposed class members may, in fact, have unlimited text messaging included as part of their wireless service agreements, an unknown number of others may not have any text messaging services included in their plans, or a limited text messaging option.
In sum, the Court finds that there are material variations in the proposed class members’ wireless service agreements. These individualized issues will predominate because determining the fact of injury will require evaluating the particular terms of each individual class member’s wireless service agreement, in order to determine whether Defendant actually caused a breach or interference with the agreement.
b. Individualized Inquiries Concerning Breach and Causation
Second, and relatedly, the Court finds that Plaintiff has not shown that the alleged contractual breach poses a common, predominating question. Plaintiff contends that “[wjhether Message[] actually disrupts the delivery of text messages” is a common question because it “turns on the inner workings of Message.” Mot. at 21. According to Plaintiff, analyzing whether Message as a system disrupts class members’ text messages can be done by examining Message itself, rather than any “individual inspection of a particular user’s phone or device.” Mot. at 21 (quoting Green Decl. at ¶ 31). Plaintiffs argument rests on the assumption that Message is the only cause of any text message disruption. However, as Defendant notes, there are a “myriad of reasons entirely unrelated” to Message that could have resulted in the disruption of text message services for each individual proposed class member. See Opp. at 10 (citing Expert Declaration of Dr. John Kelly ¶ 9, (“Kelly Expert Deck”), ECF No. 80-11). In 2007, the average reported delivery failure rate for text messages was 5.1%. Kelly Expert Deck ¶ 8. Today that would total “almost 400 billion undelivered messages.” Id. These undelivered messages could be caused by “errors in the cellular network,” user-implemented barriers such as blocking a sender, “bugs in the operating system,” or applications that interfere with the receipt of text messages. Id. ¶ 9. As Defendant’s expert details, there are dozens of ways that errors may occur during the transfer of a message to a mobile station. Id. at 9, tbl. 1. A proposed class member may therefore have failed to receive a text message, but that nondelivery could have been caused by an error or issue unrelated to Defendant’s Message service.
Ultimately, Plaintiff may be correct that Message has certain design flaws that make it more likely that text messages sent from iPhone users to a proposed class member would be disrupted or not delivered. However, whether that proposed class member’s injury was actually caused by Message would require individualized inquiries into the circumstances under which the individual class member failed to receive a particular message. This would not only involve assessing the particularities of the terms of an individual’s wireless service agreement, but also whether an individual experienced any
Plaintiff contends that Defendant’s interference is subject to common classwide proof because, as a matter of tort law, individual class members are not required to “disprove all possible alternative causes of the injury.” Reply at 4. Be that as it may, “[i]t is the settled rule in actions for wrongful interference with contract rights that an essential element of the cause of action is that the conduct charged be the procuring cause of the interference and the harm.” Beckner v. Sears, Roebuck & Co.,
In response, Plaintiff focuses on evidence that Plaintiff contends shows that there was a “systematic flaw in Apple’s Message protocol” which prevented text messages from being delivered to proposed class members.
Similarly, Plaintiff submitted the Ninth Circuit’s recent decision in Baker v. Microsoft Corp.,
Here, in contrast, not all class members can allege that they have suffered the same injury of suffering interference with their contractual right to receive text messages because of iMessage. Unlike in Baker, where each proposed class member actually pm-chased a defective good, and therefore suffered the same injury of an alleged breach of warranty, in the instant case a proposed class member’s loss of text messages may have been caused by reasons other than any iMessage flaw. Moreover, some class members did not have a wireless service contract that included text messaging services; thus, there was no contractual right with which Defendant could tortiously interfere, Accordingly, class members may not have suffered actual interference and thus cannot state a tortious interference with contract claim. In Baker, by contrast, the fact of a “design defect itself [allegedly breached] the express warranty.” Baker,
In sum, the Court is not persuaded that the question of whether iMessage is the cause of any contractual breach or interference satisfies the commonality requirement under Rule 23(a), much less the predominance requirement under Rule 23(b). The “common contention” required under Rule
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs motion for class certification. The Court concludes that Plaintiffs proposed class includes, by definition, proposed class members who could not have suffered any injury and that individualized questions with respect to Defendant’s liability will predominate over any eommon questions of law or fact.
IT IS SO ORDERED.
Notes
. The parties filed a variety of motions to seal see ECF Nos. 55, 56, 77, 80, 82, 91, 92, which the Court addressed in a separate order, ECF No. 112.
. Plaintiff neglects to mention that Plaintiff's damages expert ''take[s] as a given that Apple tortiously interfered with the agreements between class members and their wireless service provide[r]s,” and that each "class member was purchasing text delivery services.” Dwyer Decl. ¶ 4, pg. 2, n.2.
. The Court further notes that there are other wireless carriers that also provide other contract options that may or may not include text messaging services, limited text messaging services, or other variations on text messaging services. See, e.g., Cox Expert Report at 16, n. 38 (discussing
. Plaintiff cites California cases holding that in negligence actions, causation is satisfied where the defendant’s wrongful act was a “contributory factor." See Reply at 5 (citing Austin v. Riverside Portland Cement Co.,
. The Court notes that Plaintiff does not contend that this "systematic flaw” resulted in a proposed class member necessarily experiencing undelivered text messages.