ORDER DENYING CLASS CERTIFICATION AND OBJECTIONS AND MOTIONS TO STRIKE PLAINTIFF’S EXPERTS
I. INTRODUCTION
Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “roboealls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent. In his Class Action Complaint filed July 26, 2012, Plaintiff brings a claim on behalf of himself and all others similarly situated for violations of the Telephone Consumer Protection Act [“TCPA”]. Plaintiff alleges that DISH has also placed similar pre-recorded “roboealls” to the cellular telephone numbers of thousands of similarly situated persons without their prior express consent and that DISH has documented thousands of instances of such calls in a computer database called the “TCPA Tracker.” Plaintiff seeks statutory damages, injunctive relief, and reasonable attorneys’ fees and costs.
This Order addresses Plaintiffs Motion for Class Certification filed August 9, 2013. A response to the motion was filed on September 9, 2013, a reply was filed on October 4, 2013, a sur-reply was filed on February 7, 2014, and a response to the sur-reply was filed on February 28, 2014. An evidentiary hearing was held on the motion on March 19 and Mai’ch 20, 2104. This Order also addresses DISH’s objections and motions to strike the opinions and testimony of Plaintiffs experts offered in support of class certification.
Plaintiff originally sought to certify a class defined as:
all persons within the United States to whose cellular telephone number (a) DISH or any entity on its behalf, placed a non-emergency telephone call (b) through the use of an automatic telephone dialing system or an artificial or pre-recorded voice (c) within four years prior to the filing of this lawsuit (d) where Dish cannot show that the person provided prior express consent for such calls,
and a sub-class defined as:
all persons within the United States to whose cellular telephone number (a) DISH placed a non-emergency telephone call (b) through the use of an automatic telephone dialing system or an artificial or pre-re-corded voice (e) within four years prior to the filing of this lawsuit (d) who was not a DISH customer at the time of the calls. Excluded from this class are any persons of whom DISH has a record of providing prior express consent for such calls.1
All persons within the United States to whose cellular telephone number
(a) DISH placed a non-emergency telephone call
(b) through the use of an automatic telephone dialing system or an artificial or pre-recorded voice
(c) within four years prior to the filing of this lawsuit
(d) who were not DISH customers at the time of the calls, such as persons who were identified in the TCPA Tracker
(e) or have been identified in DISH’s records as being called after they appeared on DISH’s Do Not Call list.
After receipt of this revised class definition, DISH continued to object to the class definition. Among other things, it argued that the amendment to the class definition to include people who were “identified in DISH’s records as being called after they appeared on DISH’s Do Not Call List” would make the class unmanageable as it would encompass approximately 7 million DISH customers. (Tr. March 20, 2014 Hr’g, ECF No. 217, at 215-217.) I ordered the parties to meet and confer as to the class definition and the documents Plaintiff sought regarding same. (Id. 224.)
Plaintiff has now clarified that section (e) of the class definition refers only to those do-not-call requests that DISH refers to as “suppression requests”, rather than all do-not-call-requests such as those that relate to telemarketing calls. (See Pl.’s Supplemental Mem. Regarding Class Definition and Ex. 1 thereto, ECF No. 219.) Plaintiff asserts that his revision to section (e) to encompass only suppression requests greatly reduces the number of class members at issue. Thus, Plaintiff now seeks certification of the following class:
All persons within the United States to whose cellular telephone number
(a) DISH placed a non-emergency telephone call
(b) through the use of an automatic telephone dialing system or an artificial or pre-recorded voice
(c) within four years prior to the filing of this lawsuit
(d) who were not DISH customers at the time of the calls, such as persons who were identified in the TCPA Tracker
(e) or have been identified in DISH’s records as being called after they appeared in a suppression request.
At the hearing, I provisionally granted Plaintiffs class certification motion subject to approving an order on the motion, and ordered Plaintiff to file a proposed order by April 7, 2014. DISH was ordered to file a response to the proposed order by April 21, 2014. (See Minute Order of March 20, 2014, ECF No. 215.) On March 31, 2014,1 issued an Order Clarifying Courtroom Minutes in which I stated:
The Minutes do not reflect the final order on Plaintiffs Motion for Class Certification for purposes of F.R.C.P. 23(f). The final, appealable order on Plaintiffs’ Motion for Class Certification will be issued and entered after the Court considers Plaintiffs proposed order granting Plaintiffs motion for class certification and DISH’s response thereto.
(ECF No. 218.)
On April 7, 2014, Plaintiff filed his Supplemental Memorandum Regarding Class Definition as well as his [Proposed] Order Granting Plaintiffs Motion for Class Certification. On that same date, DISH filed a Brief Regarding Plaintiffs’ [sic] Newest Proposed Amended Class Definition. On April 21, 2014, DISH filed a Response to Plaintiffs Supplemental Memorandum and Objections to Plaintiffs Proposed Order Granting Plaintiffs Motion for Class Certification. On April 29, 2014, without waiving its objection to the ruling granting the motion for class
Authorized Users of cellular telephone numbers listed in the “non-customer” field of DISH’s TCPA Tracker, to the extent identifiable by telephone company records, who, at the time DISH called that number, satisfy all of the following criteria:
(1) had a name, as identified in the TCPA Tracker, different from the name of either the DISH customer or an authorized DISH user name (as shown in DISH’s CSG database), and
(2) did not share an address or last name with the DISH customer whose account the call concerned, as shown in a comparison of telephone company records and DISH customer records, and
(3) had no other affiliation (e.g., familial, employment, business, fiduciary, personal, or professional) with the DISH customer whose account was called, or DISH authorized users of the DISH television service, as shown in that Authorized User’s responses to the questions asked in the class identification verification page of the War-nick Class Website, and
(4) timely provides the verified information requested in the Warnick Class Website Questionnaire (to be drafted jointly by counsel), and timely provides cell phone billing or calling records showing their number to have been called on the pertinent date(s) by mailing a true and correct copy of such records to the Class Administrator.
(ECF No. 235, Attach. A.)
From the foregoing, the issue of class certification and the proposed order to be issued as to same as well as the class definition have been thoroughly and exhaustingly briefed. I have reviewed all the arguments, evidence and submissions. While I was initially inclined to, and indeed, provisionally granted Plaintiffs class certification motion subject to approval of an order, I now find, for the reasons discussed below, that Plaintiffs class definition is overbroad and inadequate as it does not address concerns raised by me at the hearing and objections raised by DISH which I find to be valid.
II. ANALYSIS
A. General Requirements for Class Certification
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes, — U.S. —,
The plaintiff bears the “strict” burden of proving that the requirements of Rule 23 have been met. Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc.,
B. Adequacy of the Class
I find that the dispositive issues at this juncture of the case are whether Plaintiffs current class definition is adequate or sufficiently defined and whether it is over-broad. The issue of adequacy must generally be determined before the court addresses the prerequisites of Rule 23(a). Kelecseny v. Chevron, U.S.A., Inc.,
As further explained by another district court addressing a TCPA class action:
A class definition should be “precise, objective and presently ascertainable.” O’Connor v. Boeing N. Am., Inc.,184 F.R.D. 311 , 319 (C.D.Cal.1998). While the identity of each class member need not be known at the time of certification, the class definition must be “definite enough so that it is administratively feasible for the court to ascertain whether an individual is a member.” Id. It is not fatal for class definition purposes if a court must inquire into individual records, so long as “the inquiry is not so daunting as to make the class definition insufficient.” Herkert v. MRC Receivables Corp.,254 F.R.D. 344 , 348 (N.D.Ill.2008) (internal quotation marks and citation omitted).
Agne,
If the court must undertake individualized inquiries in order to determine whether a person is a member of the class, the class is not appropriate. See Davoll,
The “rigorous analysis” applicable to Rule 23’s requirements apply to the ascertainability requirement. Carrera,
Related to ascertainability are problems with overbreadth of the class. Messner v. Northshore Univ. HealthSystem,
I now turn to the most recent class definition that Plaintiff proposes. He seeks to certify a class of those individuals to whom DISH placed robocalls who were either not a DISH customer or who previously asked DISH to cease making such calls through a suppression request. Plaintiff argues that it is administratively feasible to determine whether any particular individual meets these criteria because DISH’s business records identify its customers and the telephone numbers roboealled by its dialer.
Plaintiff also identifies a methodology for ascertaining the class members. ([Proposed] Order Granting Pl.’s Mot. Class Certification, ECF No. 220, at 9-11.) He relies on the ability of his expert witness Robert Biggerstaff to query DISH’s records and the ability of various vendors to scrub the list of telephone numbers at issue to identify which of those were assigned to cellular telephone service at the time of the calls.
Further, as to the portion of the class that are noneustomers who were roboealled, Plaintiff proposes that where the TCPA Tracker identifies the first and last name of the complainant, that person will be a class member. Where the first and last name are not identified, he proposes subpoenaing telephone carriers for the telephone numbers and directing them to (1) identify the name, address, and social security number of the subscriber to that number at the time of the calls, and (2) identify how many separate telephone lines were on that account. Plaintiff will then utilize A.B. Data to identify other addresses associated with those persons and the names of other household members at those addresses during the relevant time period. Thereafter, DISH’s customer database will be queried for those names, addresses, and social security numbers — any matches will be excluded from the class as a potential customer of DISH and the remaining persons will be class members. Should the Court require a final cross-check on the reliability of the methodology after a finding of liability, Plaintiff asserts it could order that notice be provided to those class members who had more than one telephone line that would require them to access a website and provide their cellular telephone number at the time of the calls to ensure they are the person roboealled by DISH rather than a person sharing a family plan with such a person.
DISH objects to the newly revised class definition, arguing that it has the same problems as the original class definition and is compounded by new ones. DISH asserts that the only calls that can be in Plaintiff’s class are anomalies — calls made by mistake because of data entry or customer error, and that it is illogical and unprecedented to suggest a class of anomalies is ascertainable through objective, reliable proof on a class-wide basis. DISH also objects to the methodology proposed by Plaintiff for ascertaining the class.
Turning to my analysis, I find that the class is not administratively feasible, and thus not ascertainable. Instead of limiting the class definition to the TCPA Tracker Dataset of 27,000+ individuals as discussed at the hearing and which I indicated might be a manageable class, Plaintiff has purposely kept the class definition broad, including in section (d) of the class those “who were not DISH customers at the time of the calls, such as persons who were identified in the TCPA Tracker.” Thus, while Plaintiff referenced the TCPA Tracker in his definition, he did not limit the class to people within that Tracker as discussed at the hearing on class
DISH asserts that the proposed class definition, as revised, will require that all of DISH call records and all of its 25 million customer accounts be reviewed to find potential class members. DISH argues, and I agree, that Plaintiff asks to impose an enormous and disproportionate burden on DISH — to notify and obtain consent under the Satellite Television Extension and Local-ism Act (“STELA”), 47 U.S.C. § 338(i)(4)(A)
Based on the foregoing, I find that the proposed class is not administratively feasible because identifying the class members is not a manageable process and would require extensive individual factual inquiry. See Carrera,
Also, as to the sub-class proposed in section (d), Plaintiffs methodology for ascertaining class members presumes that a person identified in DISH’s records as “not a customer” is a class member, at least as to persons who have provided their full name to DISH. (See [Proposed] Order Granting Pl.’s Mot. Class Certification, ECF No. 220, at 10.)
Thus, I am now persuaded that the fact DISH had consent to call a particular number does not turn on whether the called party was the actual, named customer in DISH’s records. (ECF No. 83 [Picchione Aff.] ¶¶ 4, 14-15-DISH makes informational calls to the numbers provided by its customers and agents do not record or investigate who is the user/ subscriber of a phone). Although invited to do so by DISH, Plaintiff refused to exclude household members and familial relationships from the new definition and has made no suggestion as to how to exclude consent from a broader class of non-customers, even though his expert Robert Biggerstaff admitted that such consenting persons cannot be in the class. (See DISH’s Objections to Pl.’s Proposed Order Granting Pl.’s Mot. Class Certification, Ex. A [Bigger-staff Dep.] at 103:9-105:17; Ex. B [Mar. 19, 2014 Hr’g Tr.] at 93:6-95:24.)
Based on the foregoing, I find that Plaintiffs Motion for Class Certification must be denied because the class is not sufficiently ascertainable and is overbroad. Accordingly, I need not address DISH’s other objections to the class proposed by Plaintiff or the requirements of Rule 23.
I also agree with DISH that section (e) is an entirely new sub-class that was never proposed before.
I acknowledge that I am not bound by the original proposed class definition. Davoll v. Webb,
The question then becomes whether I should attempt to revise the class definition in some way to try to make the class ascertainable. Notably, if I were to limit the class as defined in section (d) to persons in the TCPA Tracker, Plaintiff would not be included in the class. Since he never called DISH to complain about calls, he was not a part of the TCPA Tracker. He also would not be a member of the other subclass in section (e) of the class definition, which is comprised of customers and non-customers that made a suppression request but may have been inadvertently called thereafter. See Labou v. Celico Partnership, No. 13-844,
Accordingly, a revision limiting the class to persons identified in the TCPA Tracker would not be appropriate as Plaintiff would lack standing to sue as a class representative. See Dukes,
The procedural expedient of plaintiff class certification should not be mistaken for the sort of legal relationship that confers standing on representatives to litigate the claims of individual members____ In Weiner v. Bank of King of Prussia,358 F.Supp. 684 , 694-95 (E.D.Pa.1973), Judge Newcomer stated that a plaintiff “may not use the procedural device of a class action to boot strap himself into standing he lacks under the express terms of the substantive law____ The plaintiffs standing to bring an action against each defendant named in the Complaint must be established independently of Federal Rule of Civil Procedure 23. Only then is a plaintiff in a position to represent others having similar claims against those same defendants.”
While DISH has proposed an alternative class definition, Plaintiff did not agree to that definition. (See ECF No. 221, Ex. D [Email from T. Sostrin to Z. Ikels] stating “the proposed class definition has never been limited only to people in TCPA Tracker.”) Accordingly, I do not think it appropriate to consider the adequacy of DISH’s proposed class definition or to sua sponte revise the class definition myself. Since Plaintiff is seeking class certification, he must be the one to propose an adequate class definition that is not overbroad. As stated in the Polo v. Goodings Supermarkets decision:
Even assuming that this Court could revise and limit an overly broad class definition sua sponte, ..., the Court sees no reason to do so here. The plaintiff has the burden of proposing a class that meets the Rule 23 requirements____ Polo has had adequate time to discover relevant facts. Polo has already abandoned one class definition, and substituted a new one after both defendants’ briefs had been filed. The revised definition has failed as well, this Court has no obligation to craft a new class.
Id.,
Accordingly, Plaintiffs Motion for Class Certification is denied. However, this denial does not preclude Plaintiff from filing a new motion for class certification that proposes an ascertainable class supported by the evidence and a reliable methodology and that meets the requirements of Rule 23. Indeed, DISH acknowledges in connection with Plaintiffs latest class definition that the proper procedure for authorizing amended class definitions of this magnitude is to deny the motion but grant the plaintiff the opportunity to file a new Rule 23 motion. See, e.g., Donaca v. Dish Network, LLC, No. 11-cv-2910, — F.R.D. —, —,
C. DISH’s Objections and Motions to Strike Plaintijfs Experts
I now turn to DISH’s objections and motions to strike the report, rebuttal report and testimony of Robert Biggerstaff, as well as objections and motions to strike the affidavit, rebuttal affidavit and testimony of Anya Verkhovskaya. These reports, affidavits and testimony were offered by Plaintiffs experts Robert Biggerstaff and Anya Verkhovskaya in support of Plaintiffs Motion for Class Certification. Since I have denied Plaintiffs class certification motion, I find that DISH’s objections and motions to strike as to these experts should be denied as moot. I note for Plaintiffs reference that if he proposes a new class definition in a new motion for class certification and intends to rely on his experts in support of same, he will need to file new reports and/or affidavits of these experts.
III. CONCLUSION
Based on the foregoing,
ORDERED that Plaintiffs Motion for Class Certification filed August 9, 2013 (ECF No. 61) is DENIED. It is
FURTHER ORDERED that the document entitled “Defendant DISH Network L.L.C.’s Objections and, in the Alternative, Motion to Strike the Report and Testimony of Plaintiffs Expert Robert Biggerstaff Offered in Support of Plaintiffs Motion for Class Certification” (ECF No. 76) is DENIED AS MOOT. It is
FURTHER ORDERED that the document entitled “Defendant DISH Network L.L.C.’s Objections and, in the Alternative, Motion to Strike the Affidavit and Testimony of Plaintiffs Expert Anya Verkhovskaya Offered in Support of Plaintiffs Motion for Class Certification” (ECF No. 78) is DENIED AS MOOT. It is
FURTHER ORDERED that the document entitled “Defendant DISH Network L.L.C.’s Objections and, in the Alternative,
ORDERED that the document entitled “Defendant DISH Network L.L.C.’s Objections and, in the Alternative, Motion to Strike the ‘Rebuttal’ Report of Plaintiffs Expert Robert Biggerstaff Offered in Support of Plaintiffs Motion for Class Certification” filed November 8, 2014 (ECF No. 155) is DENIED AS MOOT.
Notes
. In the briefing on class certification, Plaintiff proposed an alternative definition deleting the last sentence of the sub-class.
. Although a satellite carrier may disclose a subscriber’s personally identifiable information if ordered to do so by a court, the subscriber must still be notified of the court order requiring disclosure of his or her private, personally identifiable information. Id. § 338(i)(4)(B)(ii).
. In so finding, I reject Plaintiff’s arguments that the suppression requests are documented in the TCPA Tracker, not DISH’s do-not-call list of seven million people, and that this addresses the concerns about manageability. DISH has shown that Plaintiff has mistakenly conflated do-not-call ["DNC"] requests with suppression requests. The DNC list relates solely to telemarketing and solicitation calls. (ECF No. 221-8 [Aff. of J. Montano] ¶¶ 6-8.) Indeed, a DNC request is a defined term in the TCPA. ”[T]he National Do-Not-Call List does not apply to calls that do not fall within the definition of 'telephone solicitation’ as defined in section 227(a)(3).” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act, 23 FCC Rcd. 559, 565, ¶ 11 n.42 (Jan. 4, 2008). Thus, only telephone solicitations "as defined in section 227(a)(3)” are governed by the national DNC list. Informational calls are not included in the DNC type of calls. Suppression requests, by contrast, relate solely to informational calls that DISH makes to its own customers as part of its ongoing service to them. See id. at 564, ¶ 9. Such calls are different than solicitation calls. See 47 U.S.C. § 227(a)(3) (" ‘telephone solicitation’ means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person's prior express invitation or permission, (B) to any person with whom the caller has an established business relationship ... ”).
. This appears to be a brand new contention that was not advanced by Plaintiff’s experts. Robert Biggerstaff previously testified that all of the TCPA tracker entities would be tested using his matching methodology, not just those where the tracker shows no name or partial names or invalid names. (See Tr. Mar. 19, 2014 Hrg. at 34:3-24; ECF No. 112-9 [Biggerstaff Rebuttal Rpt.] ¶ 28.)
. Indeed, Mr. Biggerstaff admitted his methodology would produce many false positives, such as a husband and wife with different last names and different mailing or billing addresses. (DISH’s Objections to Pl.'s Proposed Order Granting Pl.’s Mot. Class Certification, ECF No. 230, Ex. A [Biggerstaff Mar. 18, 2014 Dep.] at 104:10-105:17.)
. Plaintiff asserts that the "not a customer” designation means exactly what it says, at least as to those people who have provided DISH his or her full name. In light of the purpose of the TCPA Tracker and the step-by-step protocol that DISH's employees are instructed to follow while utilizing the Tracker interface, he argues that the Court should not be persuaded by DISH’s attempt to dispute the reliability of its own business records. I reject this argument. As explained in the affidavit submitted of DISH’s employee Marciedes Metzger, the so called "protocol" Plaintiff relies on is not actually a protocol. Other than the telephone number, none of the other information in the so called "protocol” was required or usually filed out by DISH. (See ECF No. 83-5 [Metzger Aff.] ¶ 15-17.) DISH did not investigate the veracity or accuracy of the information provided by the caller, and callers often provided very little information. (Id. ¶¶ 11-14.) While Plaintiff argues that the Court should not rely on Ms. Metzger’s affidavit, I find this unpersuasive. For example, Plaintiff asserts that Ms. Metzger does not identify any instances in which the “not a customer" designation was actually incorrect; however, she identified the actual reasons that the "not a customer field” was tagged in the TCPA Tracker. (Id. ¶ 18.)
. None of the three proposed class definitions set forth in Plaintiff’s class certification briefing discuss this group, nor is there any discussion of this group in the methodology of the expert reports or elsewhere in the briefs. This proposed sub-class has also not been the subject of discovery.
. There is no evidence that any individual was actually called after he or she requested that a number be suppressed.