Bennett v. GoDaddy.com LLC

REPLY to Response to Motion re: 122 SEALED MOTION to Certify Class, 111 MOTION to Certify Class

D. Ariz.August 24, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John R. Cox (admitted pro hac vice) john@jrclegal.net 30941 Mill Lane, Suite G-334 Spanish Fort, Alabama 36527 Telephone: (251) 517-4753 ATTORNEY FOR JASON BENNETT UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JASON BENNETT, on behalf of himself * Civil Action No. 2:16-cv-03908-DLR and all others similarly situated, * * Plaintiff, * * v. * PLAINTIFF’S REPLY IN SUPPORT OF * MOTION FOR CLASS CERTIFICATION * GODADDY.COM, LLC, * (Oral Argument requested) * Defendant. * Plaintiff Jason Bennett (“Plaintiff”), by and through undersigned counsel, respectfully submits this, his Reply in Support of his Motion for Class Certification, and states as follows: I. CLASS CERTIFICATION IS APPROPRIATE UNDER RULE 23(b)(3) A. Class issues predominate over individual issues. GoDaddy identifies three ways in which it claims that “individual issues” will predominate over class members’ claims. Two of these issues relate to Plaintiff’s prima facie claim, which requires a finding both that the relevant calls were (1) initiated for the purpose of telemarketing, and (2) initiated without the “prior express written consent” of the class members under 47 U.S.C.A. § 227(b)(1)(A)(iii) and 47 C.F.R. § 64.1200(a)(2). GoDaddy overcomplicates Plaintiff’s straightforward claim by referring to the issues of consent and purpose as “intertwined,” and discusses the difficulty of determining whether class members gave unwritten consent. (Opposition, p. 5 and n. 2) Unwritten consent is relevant only to claims which, unlike Plaintiff’s, do not rely upon allegations of telemarketing. Id.; Cf. Amended Complaint, Dkt. No. 75, ¶¶16, 36, 52(m), 53(d), and 60 (referring Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 repeatedly to “written consent.”). For purposes of the claims actually at issue in these proceedings, questions of “consent” and “purpose” can be resolved separately and simply on evidence common to all class members. The third “issue” raised by GoDaddy, involving speculation as to “business” uses of the class members’ cell phones, is irrelevant and should be disregarded by the court. 1. Class issues predominate as to the purpose of the calls Plaintiff does not argue that every call placed by GoDaddy’s CDT (or any other business that places customer-friendly and informative calls) is necessarily telemarketing. For example, calls that are solely informational in nature and intent (i.e. calls stating that a domain had expired, that a service interruption had occurred, or seeking customer-service feedback), are not, ceteris paribus, necessarily telemarketing calls. However, calls that are initiated as part of a marketing campaign to encourage the purchase of goods or services are telemarketing calls. One purpose of every call placed pursuant to the subject call campaigns was to encourage the purchase of GoDaddy products; thus, the calls are telemarketing calls, regardless of the outcome of any individual call, and even if the telemarketing purpose is paired with some additional purpose. GoDaddy argues that the court would have to examine the content of each call to determine its purpose. This would be true if the Plaintiff were alleging that the calls constituted advertisements, (where the content of a call controls), but he is not. The calls at issue do, however, constitute telemarketing. The purpose controls whether a call constitutes “telemarketing.” See Golan v. Veritas Entm't, LLC, 788 F.3d 814, 820 (8th Cir. 2015). While content may be instructive, is it not dispositive. Id. Indeed, a call initiated for the purpose of telemarketing need not even be answered to violate the TCPA. Calls that are part of an overall marketing campaign to encourage sales are telemarketing calls. In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14101 (2003). No solicitation need occur during the call to constitute telemarking. Id. There is no requirement of “an explicit mention of a good, product, or service” where the telemarketing purpose Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 2 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 is “clear from the context.” See Golan, 788 F.3d at 820. “Telemarketing occurs when the context of a call indicates that it was initiated and transmitted” for telemarketing purposes. Id. GoDaddy attempts to manufacture a predominance issue by stating that the calls imitated pursuant to the subject campaigns were placed for “various” purposes, and not exclusively for sales.1 This argument is unpersuasive. First, the subject calls were dual-purpose calls that had a telemarketing purpose and (according to GoDaddy) a second purpose as well. Even Bashaw’s carefully phrased affidavit admits that (1) , (Bashaw Decl. ¶12), and (2) that the lists of criteria used to the customers to be called were developed by . (Id. at ¶15.) Plaintiff does not dispute that some— or even all—of the subject calls may have had an informational or customer-service component. However, is clear from the context by which the calls were initiated, (pursuant to the “ ” and/or “ ” call campaigns, by a ), that one purpose of the calls was telemarketing. “Not [GoDaddy’s] characterization” but the purpose for initiating the calls determines whether the calls at issue were telemarketing calls. See Chesbro, 705 F.3d at 918. Here, one purpose of initiating the subject calls was for the CDT to seek opportunities to encourage the purchase of GoDaddy services, regardless of what other purpose GoDaddy may have paired with the telemarketing purpose. “In determining the purpose of defendant’s calls, a court does not passively accept a defendant’s tortured explanation but uses common sense to assess what the defendant was truly seeking to accomplish. See Bennett v. Boyd Biloxi, LLC, 2015 WL 2131231 (S.D. Ala. 2015). 1 This argument is based solely on a self-serving affidavit by Erin Bashaw, GoDaddy’s Senior Director of Marketing, which was prepared expressly for purposes of opposing Plaintiff’s motion. Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 3 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Second, GoDaddy argument that a call’s purpose can only be determined by its content inverts the common understanding of the word “purpose.” A “purpose” is a goal—not an outcome—and exists even before the call is initiated. GoDaddy asks the Court to look only to the outcome of a call to determine its purpose, and to ignore the context in which the call was initiated. This is the equivalent of retuning to the dock with a boat full of tackle, out of bait, and sunburned - then, when asked by the Conservation Officer for a fishing license, claiming that you weren’t “fishing” simply because your cooler is empty. In this case, a common-sense view of the circumstances shows that one purpose of the subject calls was for the CDT to seek opportunities to encourage the purchase of GoDaddy products (the CDT left the dock with bait and tackle to fish – whether they caught anything, or paired its purpose with some other, is irrelevant). Further, GoDaddy’s argument that a call’s purpose can only be determined by its content, when taken to its logical conclusion, would mean that only claims arising from pre-recorded or scripted calls are appropriate for class certification. This is simply not the case. See. eg. Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., No. 3:10-CV-1777 AJB NLS, 2012 WL 3991734, at *2 (S.D. Cal. Aug. 27, 2012), report and recommendation adopted, No. 10CV1777 AJB NLS, 2012 WL 3809123 (S.D. Cal. Sept. 4, 2012)(Certifying class of TCPA plaintiffs who had been connected with “live” representatives, with no reference to scripted calls); Trenz v. On-line Administrators, Inc., No. CV 15- 08356-AB (KSX), 2017 WL 6539019, at *2 (C.D. Cal. Sept. 25, 2017)(Same). Such an extreme rule, if adopted, would invite defendants to violate the law on a grand scale, with the knowledge that they could avoid liability in almost all cases simply by avoiding the use of pre-recorded or scripted calls. While some cases involving live and unscripted conversations will present individualized fact questions as to the purpose of each separate call, in others, like the present case, the surrounding circumstances will make it extremely obvious that all of the calls were motivated by a telemarketing Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 4 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 purpose, without regard to their content, and defendants should not be able to “game the system” simply by instructing their salespeople to vary their dialogue. GoDaddy cites several cases from the Southern District of Florida for the premise that it is “always” necessary to review the content of a call to determine its “purpose.” See Newhart v. Quicken Loans Inc., No. 9:15-CV-81250, 2016 WL 7118998, at *1 (S.D. Fla. Oct. 12, 2016); Jacobs v. Quicken Loans, Inc., No. 15-81386-CIV, 2017 WL 4838567, at *1 (S.D. Fla. Oct. 19, 2017); Fitzhenry v. ADT Corp., No. 14-80180, 2014 WL 6663379, at *1 (S.D. Fla. Nov. 3, 2014). However, these cases do not support GoDaddy’s argument. Fitzhenry states the precise opposite of the proposition for which it is cited by GoDaddy. While GoDaddy indicates that the Fitzhenry court held that, where the content of the calls differed from one call to the next, “individualized issues will always dominate the call purpose inquiry,” the court in fact declined to resolve the issue one way or the other. The court stated that were it “to find that the use of any prerecorded message in an otherwise interactive call does not necessarily violate the TCPA, it is unclear whether the Court would then be forced to examine each call to determine whether any particular call violated the TCPA.” 2014 WL 6663379, at *6 (emphasis supplied). The court found that the existence of this uncertainty, along with other issues, weighed against class certification. Id. In Newhart, the court found that, under the facts before the court, evidence of the contents of the calls would be required to determine their purpose; however, the court expressly noted that the purpose of the challenged calls varied, as some of the calls had been placed to existing clients concerning follow-up matters related to securing mortgage relief. 2016 WL 7118998, at *4. This case, is however, factually distinguishable from the present case. In Newhart no differentiation was made between the unsolicited calls and the follow-up calls that were more administrative in nature. Id. Plaintiff here does not broadly submit that every call placed by the CDT is necessarily a telemarketing call. However, the calls initiated pursuant to the “ ” and/or “ Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 5 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ” call campaigns did, in light of the surrounding context, have a telemarketing purpose. Further, in a footnote, the Newhart court stated that this evidence “distinguishes this case from those relied upon by Plaintiff where the telemarketing purpose of the challenged call could be resolved by common evidence because each class member received the same prerecorded phone message under the same circumstances.” Id. at *4, n. 2. In other words, even under the “Newhart rule,” there is an implicit initial, threshold question of whether the purpose of the calls was (1) consistent among all the calls and, (2) can be resolved by common evidence without reference to the contents of the calls. If the answer to both questions is “yes,” there is no need for a further examination of the contents of the calls. In order to require an examination of individual call contents, the defendant bears an initial burden to make a showing that the “purpose of the telephone calls” - not their contents - “varied.” As noted in Newhart, this threshold inquiry is particularly simple in cases involving multiple identical prerecorded calls, but it may also be straightforward in cases such as the present one, where multiple facts exist demonstrating that no matter what other purposes GoDaddy may submit through employee affidavits for initiating the subject calls, at least one, constant and consistent purpose for all of the subject calls was for the CDT to seek opportunities to encourage the purchase of GoDaddy’s services. GoDaddy cannot to rely on the “Newhart rule” to create a predominance issue, and thereby avoid class certification, by simply submitting an affidavit indicating that some of calls at issue contained an informational component (and ask the Court to ignore the evidence of the telemarketing purpose also present in all the subject calls). It should also be noted that the court does not need to determine at this stage whether the evidence at issue proves conclusively that GoDaddy made the calls for the purpose of encouraging sales, and should not attempt to do so. See Winkler v. DTE, Inc., 205 F.R.D. 235, 239 (D. Ariz. 2001). Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 6 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 If the court finds that it is possible that the relevant issues in this case can be ruled upon using evidence common to the class, the court should grant certification. 2. Class issues predominate as whether GoDaddy had prior express written consent of class members. Determining the purpose of the calls initiated to the class members is a prerequisite to determining the form of consent required by the TCPA. Here Plaintiff, and indeed all the class members, provided express consent to receive non-telemarketing calls from GoDaddy (i.e. purely informational calls). However, the calls at issue in this case were telemarketing calls; which require the prior express written consent of the called party. No member of the class has provided prior express written consent to GoDaddy to have telemarketing calls initiated to his or her cell phone. GoDaddy has not shown, and cannot show, that it received prior express written consent to initiate telemarking calls to the class members, nor has not identified any reason why the existence or nonexistence of prior express written consent to initiate telemarketing calls would not also be a question of fact common to all class members in this case. Courts in the 9th Circuit have routinely found the question of whether a TCPA defendant had “prior express written consent” to be a question of fact common to class members which weighs in favor of class certification. See Chan v. Sutter Health Sacramento Sierra Region, No. LACV1502004JAKAGRX, 2016 WL 7638111, at *5 (C.D. Cal. June 9, 2016)(Finding a sufficient showing of commonality of class issues in case involving question of whether prior express written consent had been given by over 6,000 class members in TCPA claim under provision at issue in this case); Meyer v. Bebe Stores, Inc., No. 14-CV-00267-YGR, 2016 WL 8933624, at *7 (N.D. Cal. Aug. 22, 2016)(“[T]he evidence on this element would be the existence or non-existence of written consent. Whether [defendant] obtained written consent is a common question that can be answered on a classwide basis.”); Manouchehri v. Styles for Less, Inc., No. 14CV2521 NLS, 2016 WL 3387473, at *3 (S.D. Cal. June 20, 2016)(“ “This action… contains questions of law or fact common to the entire Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 7 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 class, including… whether [defendant] obtained prior express written consent to send text messages to its customers….”); Cabiness v. Educ. Fin. Sols., LLC, No. 16-CV-01109-JST, 2018 WL 3108991, at *2 (N.D. Cal. June 25, 2018)(“All proposed class members in this case share the common question of whether… they received automated calls from Defendants without prior express written consent. The existence of this question satisfies the commonality requirement.”) 3. Any use of the telephone numbers for business purposes is irrelevant. “Considering whether questions of law or fact common to class members predominate begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) (internal quotation marks omitted). What GoDaddy describes as a “threshold question” of whether the calls were or were not placed to “a number held out as an established business line” is, in fact, neither an element of the underlying cause of action nor a recognized defense thereto: not one of the cases cited by GoDaddy stands for the proposition that use of a cellular phone line for business purposes removes it from the protections of § 227(b)(1)(A)(iii). Rather, the cases and regulations cited by GoDaddy which distinguish “business” lines from “residential” lines uniformly involve either subsection (c) of the statute, which regulates the National Do-Not-Call Registry and expressly applies only to “residential” telephone lines, or subsection (b)(1)(B) of the statute, which is also limited by its express terms to “residential” telephone lines. These subsections clearly contrast with the subsection under which Plaintiff’s claims lie, subsection (b)(1)(A)(iii), which applies to “any telephone number assigned to a…cellular telephone service,” and makes no distinction regarding the use of the number. § 227 (emphasis supplied). Thus, in addition to being non-precedential, unreported cases from outside of the 9th Circuit, the authorities relied upon by GoDaddy are simply irrelevant to the claims in this case. See Bank v. Independence Energy Grp. LLC, No. 12-CV-1369, 2014 WL 4954618, at *3 (E.D.N.Y. Oct. 2, 2014)(exclusively involving claim under § 227[b][1][B]); Owens v. Starion Energy, Inc., No. 3:16-CV-01912 (VAB), 2017 WL 2838075, at *5 Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 8 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 (D. Conn. June 30, 2017)(exclusively involving claims under § 227[c]); Clauss v. Legend Sec., Inc., No. 4:13-CV-00381-JAJ, 2014 WL 10007080, at *2 (S.D. Iowa Sept. 8, 2014)(same); Baker v. Certified Payment Processing, L.P., No. 16-CV-03002, 2016 WL 3360464, at *2 (C.D. Ill. June 1, 2016)(exclusively involving claims under § 227[c] and expressly discussing whether the number at issue was a “non-wireless business number”)(emphasis supplied). Finally, and most importantly, GoDaddy’s assertion that “the Ninth Circuit has yet to address the issue of whether a business telephone line is afforded protection under the TCPA” is incorrect. Multiple courts in the Ninth Circuit have explicitly rejected the argument that § 227(b)(1)(A)(iii) does not protect business lines. In Thomas v. Dun & Bradstreet Credibility Corp., 100 F. Supp. 3d 937, 944 (C.D. Cal. 2015), the court stated: Defendant… argues § 227(b)(1)(A)(iii) does not apply to business-to- business calls. Defendant cites various authorities indicating the TCPA was enacted to protect consumers from telemarketing calls and asserts § 227(b)(1)(A)(iii) should be read to permit calls to a business. As other federal courts have noted, § 227(b)(1)(A)(iii) “prohibits calls using an automated dialing system ‘to any telephone number assigned ... to a cellular telephone service’” and accordingly “does not distinguish” between calls to residential versus business lines. See Johansen v. GVN Mich., Inc., No. CV 15–00912, 2015 WL 3823036, at *1 (N.D.Ill. June 18, 2015) (Posner, J.) (quoting …§ 227(b)(1)(A)(iii)). In rejecting a similar argument raised by the defendant in Johansen, Judge Posner observed that a separate provision of the TCPA, § 227(b)(1)(B), prohibits calls “to any residential telephone line.” Id. (quoting…§ 227(b)(1)(B)). That § 227(b)(1)(A)(iii) does not include any express limitation or distinction between residential and business lines suggests the provision applies to all calls to cellular telephones, regardless of the nature of the line's use. See Russello v. United States, 464 U.S. 16, 23…(1983) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”); see also Bentley v. Bank of Am., N.A., 773 F.Supp.2d 1367, 1374 (S.D.Fla.2011) (“Defendants have cited to no authority demonstrating that the exemption of section 227(b)(1)(B) for an established business relationship likewise applies to claims brought under section 227(b)(1)(A). In the absence of such authority, and when considering that the exemption appears to only qualify the language of section 227(b)(1)(B), the Court is not persuaded Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 9 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 at this time that the exemption similarly applies to section 227(b)(1)(A).”). Similarly, in Bee, Denning, Inc. v. Capital All. Grp., 310 F.R.D. 614, 621 (S.D. Cal. 2015), the court distinguished § 227(b)(1)(A)(iii) from § 227(b)(1)(B) on the grounds that the latter applies only to residential lines and the former applies to cellular lines. Moreover, the 9th Circuit Court of Appeals itself has both implicitly held that section 227(b)(1)(A) is not limited to “residential” lines, and explicitly rejected the First Amendment argument advanced by GoDaddy. In Gomez v. Campbell-Ewald Co., 768 F.3d 871, 876 (9th Cir. 2014), aff'd, 136 S. Ct. 663, 193 L. Ed. 2d 571 (2016), as revised (Feb. 9, 2016), the defendant, like GoDaddy, argued that § 227(b)(1)(A)(iii) was unconstitutional as applied because “the government's interest only extends to the protection of residential privacy,” and that therefore the statute was unconstitutionally overbroad as applied to cellular lines. The court rejected this argument for multiple reasons, including that “to whatever extent the government's significant interest lies exclusively in residential privacy, the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy. After all, it seems safe to assume that most cellular users have their phones with them when they are at home.” Id. The 9th Circuit acknowledged that section 227(b)(1)(A) applies to all cell phones, and held that it is constitutional despite not being restricted to “residential” lines. In short, whether the Plaintiff and class members use their cell phones for “business” has no bearing on the claims and defenses in this case, and is irrelevant to the question of class certification. B. A Class Action is the Superior Means to Adjudicate this Matter. “A court may certify a class under Rule 23(b)(3) if the court finds that… a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Patel, 308 F.R.D. at 301. GoDaddy makes several self-contradictory arguments for why the class Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 10 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 plaintiffs’ claims would supposedly be more efficiently resolved individually in “small claims courts across the country” than in a class action. (Opposition, p. 24.) GoDaddy’s arguments are unpersuasive. 1. There is no legal basis for the denial of class certification based upon purely speculative future difficulties notifying class members of the suit. First, GoDaddy argues that because its own customer records are so poorly maintained that it is uncertain who actually owned auto-dialed by its sales team, Plaintiff will likely have difficulty getting notice to all class members. Such notice considerations are entirely speculative, and have little to no relevance at this stage in the proceedings. GoDaddy cites no authority for the proposition that a plaintiff must propose a detailed and fool-proof plan to locate and notify all members of a putative class in order to obtain class certification, and certainly no authority for the proposition that the plaintiff must be able to do so “based solely on [the defendant’s] records.” GoDaddy appears to confuse Rule 23(b)(3)’s requirement that a plaintiff clearly define his proposed class—which Plaintiff herein has done—with a requirement that the plaintiff locate and notify all members of the proposed class—which is not required at the class certification stage. The case of Agne v. Papa John's Int'l, Inc., 286 F.R.D. 559 (W.D. Wash. 2012) the only authority GoDaddy provides that suggests that future practical notice considerations may be relevant in any way to a Rule 23(b)(3) analysis, does not actually support GoDaddy’s argument. In Agne, the defendants argued, as GoDaddy does in this case, that the court should decline to certify the proposed class because, due to gaps in the defendants’ records, it may be difficult to identify and notify all the individual plaintiffs who fit the proposed class definition. Id. at 566. The court rejected the defendants’ argument. First, the court stated that the defendants’ concerns “are more properly addressed after class certification, except to the extent that they create manageability problems that should be considered under Rule 23(b)(3).” Id. The court then stated that “should [the issue of identifying plaintiffs] prove unmanageable—something the Court does not anticipate—the Court “retains the flexibility to address problems with a certified class as they arise, including the ability to Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 11 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 decertify.” Id.at 572, citing United Steel Workers Int'l Union v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir.2010). Moreover, in Agne, like in the present case, the anticipated difficulties in identifying and locating class members arose from deficiencies in the defendants’ own records, and the court stated that “it 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 [defendant’s agent] destroyed the call lists that it used.” Id. at 566 n. 6. Additionally, all of the “problems” GoDaddy postulates are entirely speculative, and therefore not a valid basis upon which to deny Plaintiff’s motion. “What a district court may not do is to assume, arguendo, that problems will arise, and decline to certify the class on the basis of a mere potentiality that may or may not be realized.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir. 2010). If genuine issues later arise that render a class action untenable, the court can alter or amend its order. See Sali v. Corona Reg'l Med. Ctr., 889 F.3d 623, 631 (9th Cir. 2018)(“The district court’s class certification order, while important, is also preliminary: “An order that grants or denies class certification may be altered or amended before final judgment.”) 2. There is no legal basis for the denial of class certification based on speculation as to possible future lawsuits by additional plaintiffs with similar claims to the members of the proposed class. GoDaddy also asserts that class certification should be denied the class designated by Plaintiff could have been much bigger, and that because the proposed class “covers only of the calls placed during some portion of the relevant time period,” GoDaddy could possibly face future lawsuits from the recipients of those additional calls. GoDaddy fails to identify a single case in which a court has adopted such a rule or even considered such an argument. GoDaddy’s citations to broad statements about “judicial economy” are taken out of context from cases having nothing whatsoever to do with GoDaddy’s argument. See In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958 Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 12 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 (9th Cir. 2009)(Discussing efficiency and economy of litigation in context of discussion of whether district court put too much weight on single factor to the exclusion of others in determining the balance between individual and class issues); Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 553 (1974) (Discussing efficiency and economy of litigation in context of ruling that commencement of the original class suit tolls the running of the statute of limitations for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1191 (9th Cir.), opinion amended on denial of reh'g, 273 F.3d 1266 (9th Cir. 2001)(Discussing avoiding “multiple lawsuits” in a case where “several other actions already are pending” concerning the actual claims in controversy between parties to the proposed class action suit)(emphasis supplied). There is no authority for denying class certification for failure to propose a class that includes every group of people who could possibly want to bring broadly similar claims against the defendant. 3. TCPA claims have been regularly deemed particularly suitable to resolution in class action proceedings The particular suitability to class action litigation of TCPA “auto-dialer” claims appears to be universally recognized, including in at least one of GoDaddy’s own cited authorities. See Smith v. Microsoft Corp., 297 F.R.D. 464, 469 (S.D. Cal. 2014)(Holding that while it would be possible for class members to bring independent TCPA actions in small claims court, “it would certainly be easier, and therefore likely preferable, for individual plaintiffs to permit Plaintiff … to litigate this issue on their behalf without having to expend any personal effort,” and therefore giving the issue “neutral” weight); see also Barrett v. Wesley Fin. Grp., LLC, No. 13CV554-LAB (KSC), 2015 WL 12910740, at *8 (S.D. Cal. Mar. 30, 2015)(Resolution of TCPA claim “on a classwide basis, rather than in thousands of individual lawsuits (which may never be brought because of their relatively small value), is superior because it will allow for more efficient use of both judicial and party resources.” Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 13 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Courts in the 9th circuit have criticized Forman v. Data Transfer, Inc., the 1995 Pennsylvania District Court case cited by GoDaddy for the proposition that thousands of lawsuits in state small claims courts are preferable to a single class action claim, and expressly rejected GoDaddy’s related arguments. See Mendez v. C-Two Grp., Inc., No. 13-CV-05914-HSG, 2015 WL 8477487, at *7–8 (N.D. Cal. Dec. 10, 2015), (rejecting the premises of Forman, as “the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action”); See also Patten v. Vertical Fitness Grp., LLC, No. 12CV1614-LAB (MDD), 2013 WL 12069031, at *8 (S.D. Cal. Nov. 8, 2013)(Distinguishing Forman and other cases in which courts declined to certify TCPA claims). 4. There is no legal basis for denial of class certification based upon a speculation that the award of statutory damages will be excessive. Concerns about the size of a potential award of damages have no bearing on the issue of class certification. GoDaddy cites Kline v. Coldwell, Banker & Co., 508 F.2d 226, 235 (9th Cir. 1974) for the proposition that a court may decline class certification due to concerns about a “disproportionate” penalty due to aggregation of claims. However, Kline involved a Sherman Act claim, and courts of this circuit have declined to extend Kline’s reasoning to TCPA class action suits. See Barrett, 2015 WL 12910740, at *8 (declining apply the reasoning of Kline, and pointing out that “Refusing to certify simply based on the size of a defendant’s liability would defeat Rule 23(b)(3)’s purpose: “to allow integration of numerous small individual claims into a single powerful unit.” Blackie v. Barrack, 524 F.2d 891, 899 (9th Cir. 1975); see also Newberg on Class Actions, § 4:43 (“A rule that would exempt a defendant from liability in a class action merely because damages are large would invite defendants to violate the law on a grand scale, with the knowledge that they could avoid liability by claiming that if they were forced to account for their wrongful conduct they would be put out of business”); see also Patten, 2013 WL 12069031, at *11 (Declining to apply reasoning of Kline to a TCPA class action because concerns about damages could be addressed at a later stage in the proceedings). Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 14 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 C. Plaintiff is Typical of, and Has No Conflicts of Interest With Class Members GoDaddy asserts that Plaintiff is not a “typical class member” because the calls placed to Plaintiff were made to a “business” cellular phone line. (Opposition p. 26) In fact, the “business” designation of Plaintiff’s call phone by GoDaddy highlights his typicality. See Exhibit A. Defendant Godaddy.Com, LLC’s Response to Plaintiff Jason Bennett’s Second set of Interrogatories at 11:8-12. Further, as set forth above, whether a given line is a “business” or a “residential” phone number has no bearing whatsoever on the claims at issue in this litigation, and therefore the classification of Plaintiff’s phone line is irrelevant to the question of typicality. Additionally, even if it were relevant, GoDaddy’s claim, in this section of its brief, that Plaintiff’s alleged business use of his line makes him “atypical” directly contradicts its earlier argument that “GoDaddy’s 17.5 million customers include a significant number of businesses, some of whom designate their account as a business account… and (c) ” (Opposition p. 17.) GoDaddy further argues that Plaintiff is “atypical” because he is “well-versed in the TCPA prohibitions and requirements.” (Opposition p. 26.) However, the mere fact that a plaintiff has a greater knowledge of the TCPA than the average person also has no bearing on typicality. Nghiem v. Dick's Sporting Goods, Inc., 318 F.R.D. 375, 381 (C.D. Cal. 2016), cited by GoDaddy in support of its position, in fact involved a plaintiff alleged by the defendants to be “an opportunistic and litigious TCPA attorney who was in search of a TCPA violation when he enrolled in [the defendants’] program.” (emphasis supplied.) The court held that he was not “typical,” not because he had knowledge of the TCPA, but because there was a danger that absent class members would suffer because the representative plaintiff would be preoccupied with defenses unique to himself. Id. at 382. Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 15 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Specifically, the court was concerned that the defendants had argued, and would continue to argue, that Nghiem opted in and out of the defendant’s mobile alerts program in bad faith, had not actually suffered any invasion of privacy, had fabricated the lawsuit, welcomed and hoped for text messages that violated the TCPA, was perpetrating a fraud, and “should not be awarded a penny for his lawyer shenanigans.” Id. at 382-83. Because the “major focus of [the] litigation [would] be on these issues and defenses unique to Nghiem, not on the claims of the class,” the court found that Nghiem's claims are not typical of the class as is required by Rule 23(a). None of these concerns come into play in these proceedings. Plaintiff’s actions with regard to GoDaddy are perfectly consistent with those of any normal customer who wished to receive calls about important information relevant to his account, but not to have his privacy infiltrated for telemarketing purposes or sales pitches. Moreover, Plaintiff’s experience with TCPA claims, it enhances, rather than detracts from, his suitability as class representative. See Murray v. GMAC Mortg. Corp., 434 F.3d 948, 954 (7th Cir. 2006) (An experienced plaintiff is “better able to monitor the conduct of counsel, who as a practical matter are the class’s real champions”); Patten, 2013 WL 12069031, at *9; see also Johansen v. One Planet Ops, Inc., No. 2:16-CV-00121, 2018 WL 1558263, at *4 (S.D. Ohio Mar. 5, 2018). Finally, GoDaddy claims that Plaintiff has a “conflict of interest” because some class members may have additional claims against GoDaddy not asserted in this suit. However, while a representative plaintiff must vigorously prosecute the claims that are at issue in the action (see Parra v. Bashas', Inc., 291 F.R.D. 360, 389 [D. Ariz. 2013], amended in part sub nom. Estrada v. Bashas' Inc., No. CV-02- 00591-PHX-RCB, 2014 WL 1319189 [D. Ariz. Apr. 1, 2014]), there is simply no requirement that a representative plaintiff also assert every other possible claim that every class member could possibly have against a defendant, and Plaintiff’s failure to do so doesn’t constitute a “conflict of interest.” II. CLASS CERTIFICATION OF THE PORTION OF PLAINTIFF’S CLAIMS SEEKING INJUNCTIVE RELIEF IS APPROPRIATE UNDER RULE 23(b)(2). Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 16 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 While class certification is available under Rule 23(b)(2) only where the “primary relief sought” is declaratory or injunctive, (Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 [9th Cir. 2011), where, as here, a plaintiff seeks both declaratory and monetary relief, the court may certify both a 23(b)(2) class for the portion of the case concerning injunctive and declaratory relief and a 23(b)(3) class for the portion of the case requesting monetary damages. See Newberg on Class Actions § 4:38 (5th ed. 2017); Barrett, 2015 WL 12910740, at *6–7 (certifying both classes in the context of the TCPA); Kavu v. Omnipak Corp., 246 F.R.D. 642, 649 (W.D.Wash. 2007)(same); West v. California Servs. Bureau, Inc., 323 F.R.D. 295, 307 (N.D. Cal. 2017), leave to appeal denied sub nom. Membreno v. California Serv. Bureau, Inc., No. 17-80258, 2018 WL 1604629 (9th Cir. Mar. 27, 2018). Plaintiff seeks certification only of his requests for injunctive relief pursuant to Rule 23(b)(2), and need not demonstrate the applicability of Rule 23(b)(2) to his monetary claims. III. GODADDY’S REQUEST TO “EXCLUDE” KENNETH SPONSLER’S REPORT IS LEGALLY MERITLESS AND NOT PROPERLY BEFORE THE COURT. Since a motion to certify a class is a preliminary procedure during which the Court makes no findings of fact and announces no ultimate conclusions, strict adherence to the Federal Rules of Civil Procedure or Evidence is not required. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). “Applying the formal strictures of trial to such an early stage of litigation makes little common sense.” Sali v. Corona Reg'l Med. Ctr., 889 F.3d 623, 631 (9th Cir. 2018). GoDaddy argues that Sponsler’s report should be “excluded” because it does not comply with the standards of Federal Rule of Evidence 702 and “invades the province of the jury.” There is no “jury” in these proceedings, Rule 702 does not apply to a motion for class certification, and even if it did, a reply memorandum to Plaintiff’s motion is not the proper vehicle for the argument. Moreover, there is no doubt that the court has the experience and ability to determine the appropriate amount of weight to give to the report. GoDaddy’s nonsensical request should be disregarded. Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 17 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Dated: August 24, 2018 Respectfully submitted, s/ John R. Cox John R. Cox (admitted pro hac vice) Attorney for Plaintiff and Proposed Class 30941 Mill Lane, Suite G-334 Spanish Fort, Alabama 36527 251.517.4753 john@jrclegal.net CERTIFICATE OF SERVICE The undersigned hereby certifies, under penalty of perjury under the laws of the State of Arizona, that I served the foregoing document via U.S. Mail, with a courtesy copy via electronic mail, to the following: Paula L. Zecchini, AZ Bar No. 031880 Taylor P. Widawski (admitted pro hac vice) COZEN O’CONNOR 999 3rd Avenue, Suite 1900 Seattle, WA 98104 Telephone: (206) 340-1000 Facsimile: (206) 621-8783 E-Mail: pzecchini@cozen.com twidawski@cozen.com Attorneys for Defendant GODADDY.COM, LLC SIGNED AND DATED this 24th day of August, 2018 at Spanish Fort, Alabama. s/ John R. Cox John R. Cox (admitted pro hac vice) Case 2:16-cv-03908-DLR Document 125 Filed 08/24/18 Page 18 of 18