Fitzgerald et al v. Universal Pictures et al

RESPONSE in Opposition re MOTION to Certify Class

M.D. Fla.August 28, 2018

10565681 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CHARLIE FITZGERALD, III, OPHELIA PARKER, and JOSEPH NASO, individually and on behalf of all others similarly situated, Plaintiffs, vs. UNIVERSAL PICTURES, a division of UNIVERSAL CITY STUDIOS LLC; LEGEND PICTURES, LLC; LEGENDARY PICTURES FUNDING, LLC; LEGENDARY ANALYTICS, LLC; and HANDSTACK, P.B.C., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 6:16-CV-01193-CEM-DAB DEFENDANTS’ JOINT OPPOSITION TO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 1 of 40 PageID 1433 TABLE OF CONTENTS Page 10565681 - i - INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................. 1 BACKGROUND .................................................................................................................................... 3 ARGUMENT ........................................................................................................................................... 6 I. THE STANDARD FOR CLASS CERTIFICATION ........................................................ 6 II. NONE OF PLAINTIFFS’ PROPOSED CLASSES ARE ASCERTAINABLE, AND INDIVIDUALIZED ISSUES PREDOMINATE ...................................................................................................................... 6 A. There Is No Feasible Way To Identify the Recipients of the Warcraft Texts Based On The Available Cellphone Records ................................................. 8 i. The class cannot be ascertained based on what Plaintiffs mischaracterize as “Defendants’ own data” ................................................ 8 ii. Plaintiffs’ expert evidence is conclusory and unsupported and does not provide a reliable basis for identifying those who received the Warcraft Texts .......................................................................... 11 B. Not Only Are Plaintiffs Unable to Associate Putative Class Members with Phone Numbers that Were Sent a Warcraft Text, Plaintiffs Cannot Determine Whether Putative Class Members Received a Warcraft Text ................ 16 C. There is No Way to Determine Whether a Phone Number Was Used for Personal or Business Purposes ........................................................................... 19 D. There is No Way to Determine Whether a Recipient Was “Called” Outside of the Permissible Time Range on a Class Wide Basis .......................... 20 III. PLAINTIFFS’ PROPOSED CLASSES VIOLATE ARTICLE III STANDING REQUIREMENTS AND CANNOT SATISFY PREDOMINANCE ................................................................................................................ 21 A. Plaintiffs’ Classes Include Members Who Have Suffered No Injury ................. 22 B. Plaintiffs’ “Internal Procedure” Class Violates Article III .................................... 24 IV. MR. FITZGERALD AND CLASS COUNSEL CANNOT ADEQUATELY REPRESENT THE CLASS ................................................................................................... 26 Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 2 of 40 PageID 1434 Page 10565681 - ii - V. THE COURT LACKS PERSONAL JURISDICTION WITH RESPECT TO OUT-OF-STATE CLASS MEMBERS ........................................................................ 28 CONCLUSION ..................................................................................................................................... 30 Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 3 of 40 PageID 1435 10565681 - i - TABLE OF AUTHORITIES Page(s) Cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................................................................................ 30 America’s Health & Resource Center Ltd. v. Alcon Laboratories, Inc., No. 16 C 4539. Dkt. No. 190 (N.D. Ill. June 15, 2018) ............................................................... 29 Babineau v. Fed. Exp. Corp., 576 F.3d 1183 (11th Cir. 2009) ......................................................................................................... 24 Balschmiter v. TD Auto Fin. LLC, 303 F.R.D. 508 (E.D. Wis. 2014) ..................................................................................................... 14 Bank v. Independence Energy Group LLC, No. 12-cv-1369, 2014 WL 4954618 (E.D.N.Y. Oct. 2, 2014) .............................................. 19, 20 BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549 (2017) ......................................................................................................................... 29 Branch v. Gov’t Employees Ins. Co., 323 F.R.D. 539 (E.D. Va. 2018) ....................................................................................................... 22 Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017) ........................................................................................................... 28, 29, 30 Brown v. Electrolux Home Prod., Inc., 817 F.3d 1225 (11th Cir. 2016) ........................................................................................................... 6 Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App’x 782 (11th Cir. 2014) ..................................................................................................... 7 Cabrera v. Gov’t Employees Ins. Co., No. 12-61390-CIV, 2014 WL 11881001 (S.D. Fla. Oct. 22, 2014) ............................................. 24 Carey v. United States, No. 8:12-CV-1984-T-35, 2013 WL 7118116 (M.D. Fla. July 17, 2013). ...................................... 7 Carriuolo v. Gen. Motors Co., 823 F.3d 977 (11th Cir. 2016) ............................................................................................................. 7 Caruso v. Merchants Credit Ass’n, No. 16-CV-00895-BAS(AGS), 2017 WL 2972415 (S.D. Cal. July 11, 2017) ............................ 23 Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 4 of 40 PageID 1436 Page 10565681 - ii - Cellco Partnership v. Plaza Resorts, Inc., No. 12-81238-CIV, 2013 WL 5436553 (S.D. Fla. Sep. 27, 2013) ............................................... 17 Comcast Corp. v. Behrend, 569 U.S. 27 (2013) ................................................................................................................................ 6 Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151 (11th Cir. 2009) ........................................................................................................... 9 Cordoba v. DIRECTV, LLC, 320 F.R.D. 582 (N.D. Ga. 2017) ...................................................................................................... 26 Cunningham v. Rapid Response Monitoring Services, Inc., 251 F. Supp. 3d 1187 (M.D. Tenn. 2017) ....................................................................................... 19 Currier v. PDL Recovery Grp., LLC, No. 14-12179, 2017 WL 712887 (E.D. Mich. Feb. 23, 2017) ........................................... 17 Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) .............................................................................................................. 22 In re Dental Supplies Antitrust Litig., No. 16 Civ. 696 (BMC)(GRB), 2017 WL 4217115 (E.D.N.Y. Sept. 2017) ............................... 30 Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) ................................................................................................................ 4 English v. Apple, Inc., No. 14-cv-01619-WHO, 2016 WL 1188200 (N.D. Cal. Jan. 5, 2016)................................. 27, 28 Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014) ...................................................................................................... 27, 28 Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (11th Cir. 1983) ........................................................................................................... 24 Fini v. Dish Network, L.L.C., 955 F. Supp. 2d 1288 (M.D. Fla. 2013) ........................................................................................... 17 Haight, 2015 WL 1283Haight v. Bluestem Brands, Inc., No. 613CV1400ORL28KRS, 2015 WL 12830482 (M.D. Fla. May 14, 2015) ........................................................................... 7, 17 Horowitz v. GC Servs. Ltd. P’ship, No. 14CV2512-MMA RBB, 2016 WL 7188238 (S.D. Cal. Dec. 12, 2016) ............................... 23 Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 5 of 40 PageID 1437 Page 10565681 - iii - Howe v. Samsung Elecs. Am., Inc., No. 1:16CV386-RH/GRJ, 2018 WL 2212982 (N.D. Fla. Jan. 5, 2018).............................. 29, 30 Jacobs v. Quicken Loans, Inc., No. 15-81386-CIV, 2017 WL 4838567 (S.D. Fla. Oct. 19, 2017) ............................................... 14 Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 109 (N.D. Ill. 2013) ........................................................................................ 15 JWD Auto., Inc. v. DJM Advisory Grp. LLC, No. 215CV793FTM29MRM, 2017 WL 2875679 (M.D. Fla. July 6, 2017) ............................... 22 Karhu v. Vital Pharmaceuticals, Inc., 621 F. App’x 945 (11th Cir. 2015) ............................................................................................ 10, 12 Legg v. PTZ Ins. Agency, Ltd., 321 F.R.D. 572 (N.D. Ill. 2017) .................................................................................... 22, 24, 25, 26 Little v. T-Mobile USA, Inc., 691 F.3d 1302 (11th Cir. 2012) ........................................................................................................... 6 London v. Wal-Mart Stores, Inc., 340 F.3d 1246 (11th Cir. 2003) ......................................................................................................... 26 Maclin v. Reliable Reports of Tex., Inc., Case No. 1:17 CV 2612, 2018 WL 1468821 (N.D. Ohio Mar. 26, 2018) .................................. 29 McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005) ......................................................................................................... 12 McGuire v. Ryland Grp., Inc., No. 6:05-CV-1421-ORL-22, 2007 WL 7951261 (M.D. Fla. June 21, 2007) .............................. 11 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ............................................................................................................................ 30 Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017) ......................................................................................................... 21 Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ........................................................................................................... 28 In re Photochromic Lens Antitrust Litig., No. 8:10-CV-00984-T-27EA, 2014 WL 1338605 (M.D. Fla. Apr. 3, 2014) ................................ 6 Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 6 of 40 PageID 1438 Page 10565681 - iv - Placida Prof’l Ctr., LLC v. F.D.I.C., No. 8:09-CV-2221-T-30MAP, 2011 WL 5975268 (M.D. Fla. Oct. 18, 2011) ........................... 15 Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840 (N.D. Ill. 2018) ........................................................................................ 29, 30 Randolph v. J.M. Smucker Co., 303 F.R.D. 679 (S.D. Fla. 2014) ....................................................................................................... 22 In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14014 (2003) .................................................................................................................. 19 Sacchi v. Care One, LLC, No. 2:14-CV-00698 SDW, 2015 WL 3966034 (D.N.J. June 30, 2015) ............................ 17 Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017) .................................................................................................... 7, 8, 19 Sherman v. Yahoo! Inc., No. 13CV0041-GPC-WVG, 2015 WL 5604400 (S.D. Cal. Sept. 23, 2015) ....................... 11, 14 Shroder v. Suburban Coastal Corp., 729 F.2d 1371 (11th Cir. 1984) ......................................................................................................... 27 Southwell v. Mortg. Inv’rs Corp. of Ohio, No. C13-1289 MJP, 2014 WL 3956699 (W.D. Wash. Aug. 12, 2014) .......................... 12, 16, 19 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ................................................................................................................. 21, 26 St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 17-1794, 2018 WL 3719694 (8th Cir. Aug. 6, 2018) ...................................................... 25, 26 Stein v. Monterey Fin. Servs., Inc., No. 2:13-CV-01336-AKK, 2017 WL 412874 (N.D. Ala. Jan. 31, 2017)...................................... 7 Tel. Sci. Corp. v. Hilton Grand Vacations Co., No. 615CV969ORL41DAB, 2015 WL 7444409 (M.D. Fla. Nov. 20, 2015) ............................ 21 Tickling Keys, Inc. v. Transamerica Fin. Advisors, Inc., 305 F. Supp. 3d 1342 (M.D. Fla. 2018) ........................................................................................... 30 Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) ........................................................................................................................ 22 Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 7 of 40 PageID 1439 Page 10565681 - v - Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) ........................................................................................................... 7 Vincent v. Money Store, 304 F.R.D. 446 (S.D.N.Y. 2015) ...................................................................................................... 24 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) .............................................................................................................................. 6 Ward v. EZPawn Fla., Inc., No. 615CV474ORL22DAB, 2016 WL 8939120 (M.D. Fla. June 3, 2016) ............................. 6, 7 Youngman v. A&B Ins. & Fin., Inc., No. 616CV1478ORL41GJK, 2018 WL 1806588 (M.D. Fla. Apr. 17, 2018) ..................... 15, 16 Statutes 28 U.S.C. § 2072(a) .................................................................................................................................... 30 28 U.S.C. § 2072(b) ................................................................................................................................... 30 47 U.S.C. § 227 (Telephone Consumer Protection Act) ............................................................... passim Rules Federal Rule of Civil Procedure 23 .................................................................................................. passim Regulations 47 C.F.R. § 64.1200(a)(vi) ........................................................................................................................ 25 47 C.F.R. § 64.1200(c)(1) .................................................................................................................. 20, 21 47 C.F.R. § 64.1200(c)(2) ......................................................................................................................... 19 47 C.F.R. § 64.1200(d) ....................................................................................................................... 19, 24 Other Authorities U.S. Constitution Article III ........................................................................................................... passim Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 8 of 40 PageID 1440 10565681 - 1 - INTRODUCTION AND SUMMARY OF ARGUMENT In this action, the named plaintiffs led by Mr. Charlie Fitzgerald seek over $1 billion in statutory penalties under the Telephone Consumer Protection Act (“TCPA”). They allege that text messages sent by Defendant Handstack P.B.C. (“Handstack”) to promote the movie “Warcraft,” a film produced and/or distributed by Defendants Universal Pictures (“Universal”) and Legend Pictures, LLC (“Legendary”) (collectively, “Defendants”), constitute a “greatest hits” of telemarketing predation. But overheated rhetoric does not satisfy the class certification requirements of Federal Rule 23. Those prerequisites have not been met here. Indeed, as demonstrated below, the question is not even close. The deficiencies in Plaintiffs’ class certification motion include, but are not limited to:  Ascertainability: None of the four discrete classes proposed by Plaintiffs satisfy the ascertainability requirement of Federal Rule of Civil Procedure 23. Although it is their burden to do so, Plaintiffs have failed to provide any feasible method for determining who received a Warcraft Text or who actually suffered a cognizable injury as a result. Indeed, Plaintiffs offer no reliable basis to match the phone numbers to which texts were sent to any particular absent class member, nor could they ever do so. As demonstrated below, at best fewer than 8 percent of the telephone numbers to which texts were sent can be reliably matched to any particular person. This defect alone constitutes grounds for denying class certification.  Predominance: Not only is the identification of class members impossible, so too do individualized issues predominate over questions common to the putative class members. For example, Plaintiffs have no way of (1) distinguishing between the subscriber of a cellphone from the user (i.e., the person who actually received the text); Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 9 of 40 PageID 1441 10565681 - 2 - (2) determining whether an intended recipient who was sent a text actually received it; (3) determining whether a cellphone number is a residential or business line; or (4) determining the time-of-day when the texts were allegedly sent.  Article III Standing: This suit was originally brought by Charlie Fitzgerald (currently one of three named plaintiffs) alleging that Defendants’ Warcraft texts violated the TCPA. Yet it is now clear that Mr. Fitzgerald never even received any such text (his daughter did). As such, he, and other class members like him, suffered no injury and lack standing under Article III of the U.S. Constitution. Moreover, this is not Plaintiffs’ only standing problem. One of Plaintiffs’ proposed classes consists entirely of individuals who have not suffered any Article III injury at all.  Inadequacy of Representation: Class Counsel and Mr. Fitzgerald have a fatal conflict of interest that prevents them from adequately representing the class and precludes certification. Mr. Fitzgerald’s daughter (the one who actually received the Warcraft Text) is married to an attorney at Plaintiffs’ law firm who has worked on, and stands to benefit from, this case. Courts have held that such familial relationships present significant risks that the classes’ interests will be sacrificed for personal gain. Class counsel and Mr. Fitzgerald should thus be precluded from representing the class here.  Personal Jurisdiction: Even assuming that the class is certifiable (it is not), certification must be limited to class members residing in Florida only. The Supreme Court has made clear that, in collective actions, courts lack personal jurisdiction over claims brought by non-resident plaintiffs against a non-resident defendant unless the injury, or the conduct that gave rise to it, occurred in the forum state. Here, none of Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 10 of 40 PageID 1442 10565681 - 3 - Defendants are residents of the state of Florida, none of the allegedly offending text messages were sent from Florida, and there is no reason to believe that non-resident class members were somehow injured in Florida. Exercising jurisdiction over the non- resident class members’ claims would thus violate Defendants’ due process rights. For these and additional reasons set forth below, Plaintiffs’ Motion should be denied. BACKGROUND Legendary and Universal are two independent movie studios that, for the past several years, have operated under an agreement to jointly finance, produce and distribute certain films. In June 2016, Universal and Legendary released the movie Warcraft, based on the hit computer game of the same name. Plaintiffs’ Third Amended Complaint (“TAC”), Dkt. 97 ¶ 83; Ex. A (Deposition Transcript of Matthew Marolda) at 105:8-11.1 To promote the movie and make it easier for film-goers to purchase tickets, Legendary contracted with Handstack, a small independent company, to perform a text messaging campaign. The goal was to deliver a single text to persons who, based on demographic analytics, were most likely to be interested in seeing Warcraft and to make it easier for them to buy a ticket by providing a link to the Fandango ticket buying website. Ex. A at 88:9-15; Declaration of Jessica Lee (“Lee Decl.”) ¶¶ 21-22. Prior to contracting with Handstack, Legendary sought assurances that the campaign would be legal. Lee Decl. ¶ 23; Ex. A at 36:21-37:12. Handstack represented that it would be, even providing Legendary with a memorandum from the prominent Wilson Sonsini law firm stating (quite correctly) that Handstack’s technology was TCPA compliant. Lee Decl. ¶ 24. Legendary provided Handstack with a list of email addresses (with corresponding name 1 All exhibits are attached to the Declaration of Steven A. Marenberg filed concurrently with this Opposition. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 11 of 40 PageID 1443 10565681 - 4 - and address information) separated into demographically curated segments that it acquired from a company called Relevate. Lee Decl. ¶ 27; Ex. A at 24:16-27:10.2 Without any further involvement by Legendary or Universal, Handstack sent this information to an outside vendor called Data Clear, which in turn sent it to another vendor called Melissa Data, which then tried to match the names with cellphone numbers. Lee Decl. ¶¶ 31-33; Declaration of Margret Daley (“Daley Decl.”) ¶ 5. Handstack then sent text messages using its own process and equipment. Lee Decl. ¶¶ 31-35. It was the parties’ intent to send only one text to each number, Id. ¶ 38, and all texts were sent by Handstack prior to 3 p.m. Pacific Time to comply with the time restrictions of the TCPA, Ex. B (Deposition of Jessica Lee Transcript) at 175:22-176:17. Handstack’s texting system consists of a self-developed, proprietary software program that operates out of a web-browser and functions like the group text feature of a smartphone. Ex. C (Expert Report of Ken Sponsler) ¶¶ 19, 45, 53. To send a text, one must manually complete a multi-step process that includes entering each number, composing the body of the text, and then transmitting the text to the desired recipients. Id. ¶¶ 22-23. Unlike automated text-messaging services, Handstack’s system has no ability to generate or dial a random or sequential list of numbers. Id. ¶¶ 20-23. All numbers must be manually curated and entered by a user. Id. (It is settled that these features take Handstack’s system out of the purview of the TCPA, which defeats Plaintiffs’ claims on substantive grounds—although, as a procedural matter, that is a question reserved for summary judgment on another day).3 2 Universal had virtually no role whatsoever in the text campaign. Its involvement was essentially limited to reimbursing Legendary for the expenses associated with the text message effort. Ex. J (Deposition Transcript of Doug Neil) at 10:23-11:1, 30:9-16. It never communicated with Handstack. Lee Decl. ¶ 39. 3See, e.g., Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018) (finding that calling system was not covered by the TCPA where it lacked “the present capacity to function as an autodialer by generating Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 12 of 40 PageID 1444 10565681 - 5 - The text messaging campaign was limited in duration; it was conducted in an initial test phase of 5,000 texts prior to the release of the movie and in two larger tranches during the opening weekend for the film and first weekend following that. Lee Decl. ¶ 27; Ex. A 17:9-18:1; 92:18-93:11. Two weeks after the campaign’s completion, Plaintiff Fitzgerald brought suit alleging that Defendants had invaded his privacy by sending him a text message. Dkt. 1 ¶¶ 18, 42. Discovery revealed, however, that it was not Mr. Fitzgerald, but his daughter (whose husband is an attorney at Plaintiffs’ counsel’s law firm), who actually received the Warcraft Text. Ex. D (Deposition Transcript of Charlie Fitzgerald) at 10:5-16, 41:25-42:3, 56:13-19. Moreover, Mr. Fitzgerald was not charged anything for the Warcraft Text that his daughter allegedly received. At the time, he had an unlimited texting plan, and he did not incur any data overages as a result of the Warcraft Text. Id. at 81:2-15, 115:8-117:14. Plaintiffs have since amended their complaint three times. Dkt. Nos. 11, 35, 97. They’ve added two additional named plaintiffs, at least one of whom was cold called by Plaintiffs’ counsel unsolicited, possibly in violation of the TCPA. Ex. E (Deposition Transcript of Ophelia Parker) at 15:10-16:13. In addition, Plaintiffs have alleged that the matching process that Melissa Data used to associate phone numbers with the names and addresses provided was completely inaccurate because “there are no general repositories that contain all known email addresses or cell phone numbers.” TAC ¶ 87; see also id. ¶¶ 4, 90. Despite this, Plaintiffs now claim that they can identify the individuals who received a Warcraft Text using these same records and other third party databases. They seek to certify a class of all such individuals. random or sequential telephone numbers” and could only send messages “to numbers that had been individually and manually inputted into its system by a user”). Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 13 of 40 PageID 1445 10565681 - 6 - ARGUMENT I. THE STANDARD FOR CLASS CERTIFICATION The standard for class certification is demanding. “[C]lass actions are an exception to [the] constitutional tradition of individual litigation.” Brown v. Electrolux Home Prod., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). Thus, the “presumption is against class certification.” Id. “The party seeking class certification has the burden of proof.” Id. To satisfy this burden, a movant must put forth evidence demonstrating “that each Rule 23 requirement is met.” In re Photochromic Lens Antitrust Litig., No. 8:10-CV-00984-T-27EA, 2014 WL 1338605, at *6 (M.D. Fla. Apr. 3, 2014) (citing Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). The district court must then “conduct a ‘rigorous analysis’ to determine whether the movant carried his burden, which ‘will frequently entail ‘overlap with the merits of the plaintiff’s underlying claim.’” Brown, 817 F. 3d at 1234 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011)). In conducting this analysis, the court may not “accept” a movant’s assertions “as true” or construe the facts in the movant’s “favor.” Id. Rather, to the extent that factual disputes arise, the district court has “a duty to actually decide [them],” and any uncertainty must be resolved against certification. Id. at 1233-34. (citing Comcast, 133 S. Ct. at 1432-33). In short, if “doubts remain about whether the standard is satisfied,” the proponent of class certification “‘loses.’” Id. II. NONE OF PLAINTIFFS’ PROPOSED CLASSES ARE ASCERTAINABLE, AND INDIVIDUALIZED ISSUES PREDOMINATE “[A] plaintiff seeking to represent a proposed class must establish that the proposed class is ‘adequately defined and clearly ascertainable.’” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012). This analysis must be “administratively feasible in that ‘identifying class members is a manageable process that does not require much, if any, individual inquiry.’” Ward Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 14 of 40 PageID 1446 10565681 - 7 - v. EZPawn Fla., Inc., No. 615CV474ORL22DAB, 2016 WL 8939120, at *3 (M.D. Fla. June 3, 2016) (quoting Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014)), aff’d sub nom., 679 F. App’x 987 (11th Cir. 2017). In addition, where, as here, plaintiffs seek certification under Rule 23(b)(3), they must establish that “common questions of law or fact predominate over questions affecting only individual class members.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009). “Common issues can predominate only if they have a direct impact on every class member’s effort to establish liability that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 985 (11th Cir. 2016) (internal quotations omitted) (emphasis in original). The evidentiary requirements for meeting this standard are “demanding,” and often present a “significant barrier” to certification. Carey v. United States, No. 8:12-CV-1984-T-35, 2013 WL 7118116, at *4 (M.D. Fla. July 17, 2013), report and recommendation adopted, 2013 WL 7118114 (M.D. Fla. Aug. 8, 2013). In the TCPA context, the predominance and ascertainability analyses frequently overlap. See Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 471 (6th Cir. 2017). Courts consistently refuse to certify classes on ascertainability and predominance grounds where the plaintiff has failed to show that there is any practical way of identifying all of the individual persons (as opposed to just phone numbers) who received the allegedly offending call or text absent individualized inquiry. See, e.g., Haight v. Bluestem Brands, Inc., No. 613CV1400ORL28KRS, 2015 WL 12830482, at *4-5 (M.D. Fla. May 14, 2015)(denying class certification where plaintiff failed to prove that “the identities of the persons ‘who received’ calls in violation of the TCPA [could] be identified”), report and recommendation adopted 2015 WL 12835994 (M.D. Fla. June 1, Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 15 of 40 PageID 1447 10565681 - 8 - 2015); Stein v. Monterey Fin. Servs., Inc., No. 2:13-CV-01336-AKK, 2017 WL 412874, at *3–4 (N.D. Ala. Jan. 31, 2017) (denying certification because plaintiff could not identify “individuals to whom [defendant] placed debt-collection calls”); see also Sandusky, 863 F.3d at 470–72 (6th Cir. 2017) (affirming denial of certification where actual recipients of a fax could not be identified). These precedents are applicable here. As explained below, no database exists that is capable of identifying the individuals who owned or used the cellphone numbers that allegedly received a Warcraft Text, and the databases that Plaintiffs propose to rely on at best can identify fewer than 8% of Plaintiffs’ proposed class members. Indeed, when tested, Plaintiffs’ proposed methods were not even capable of accurately identifying all of the named plaintiffs. Further, even if Plaintiffs could overcome this obstacle, they would still face other insurmountable ascertainability and predominance hurdles because Plaintiffs have not demonstrated that they can determine which proposed class members actually received a Warcraft Text or whether they are entitled to relief under various provisions of the TCPA. A. There Is No Feasible Way To Identify the Recipients of the Warcraft Texts Based On The Available Cellphone Records To establish that members of their proposed classes can be identified, Plaintiffs propose to use a combination of (1) “Defendants’ own data” (which in fact is actually data provided by third parties), Mot. at 8, and (2) the report of their expert Anna Verkhovskaya, Mot. at 7-9. But neither of these methods, either alone or combined, is capable of accurately identifying putative class members. i. The class cannot be ascertained based on what Plaintiffs mischaracterize as “Defendants’ own data” In their Motion, Plaintiffs assert for the first time that the class members can be identified based on the “extensive contact information available from Defendant’s own records Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 16 of 40 PageID 1448 10565681 - 9 - produced in discovery.” Mot. at 7. But they neglect to mention that, in their operative complaint, they allege that these very same records are woefully inaccurate for this very purpose. TAC ¶¶ 4, 87, 90. Plaintiffs cannot now rely on these records to establish class certification. In contrast to other TCPA cases, this is not a situation where Defendants have detailed records regarding their own customers whose accuracy cannot be reasonably questioned. Rather, as explained above, what Plaintiffs refer to as “Defendants’ own data” is actually information that was acquired through various third-party vendors. In their operative complaint, Plaintiffs lambast this “matching” process as “unreliab[le],” “inaccurate[]” and mere “guess” work. TAC ¶¶ 4, 87, 90. Specifically, Plaintiffs assert:  “Despite the fact that the ‘matched’ telephone numbers provided by Data Clear share (little to) no relationship with most of the emails Relevate initially provided confidentially to Legendary, Handstack, Legendary and Universal, then effectuated the text message campaign and sent up to approximately 2,000,000 text message advertisements promoting the Warcraft film.” TAC ¶ 4.  “[Defendants] hired a ‘matching’ service to ‘match’ cellular telephone number(s) with the purchased email addresses. Of course, there are no general repositories that contain all known email addresses or cell phone numbers, so to find a cell phone number linked to an email address is merely guess matching by association.” Id. ¶ 87  “Not surprisingly, the process of buying a list of email addresses, unreliably and inaccurately associating mobile numbers to each email address, and then mass texting those ‘virtually mined’ mobile phone numbers had no method to obtain any consent . . .” Id. ¶ 90 Plaintiffs are “bound” by these allegations. See Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1177 (11th Cir. 2009) (“[T]he general rule [is] that a party is bound by the admissions in his pleadings.”). Having impugned Defendants’ so-called “own data” in their complaint, Plaintiffs cannot rely on this exact same data to demonstrate ascertainability. Even if they were not bound, Plaintiffs provide absolutely no explanation for their sudden about face. They have done nothing to demonstrate that these records are accurate, as is Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 17 of 40 PageID 1449 10565681 - 10 - their burden. They have taken no discovery on how these records were obtained (their motion makes no mention of Melissa Data or the methods that it used). Further, even though Plaintiffs assert that their expert, Anya Verkhovskaya, intends to use these records as a “cross-reference,” Mot. at 9, she did not perform any testing or analysis on these records even though she has had ample opportunity to do so. Indeed, Ms. Verkhovskaya does not even mention these records in her report. In sum, Plaintiffs have done virtually nothing to “establish [defendants’] records are in fact useful for identification purposes, and that identification will be administratively feasible.” Karhu v. Vital Pharmaceuticals, Inc., 621 F. App’x 945, at 948 (11th Cir. 2015). Had they done their required diligence, Plaintiffs would have discovered that that the matching services Handstack obtained from Data Clear via Melissa Data were in fact inaccurate (though Handstack, Universal and Legendary were not aware of this at the time).4 As Plaintiffs correctly alleged, and as Defendants’ experts have confirmed, “there are no general repositories that contain all known email addresses or cell phone numbers.” TAC ¶ 87. Third party data providers use information that is ultimately “highly unreliable and based on inaccurate and out- of-date sources.” Exhibit G ¶ 1. See also Ex. C ¶¶ 67-70. Melissa Data is no different. Daley Decl. ¶¶ 7-8. Indeed, when Defendants’ expert, Margret Daley, tested Melissa Data using a random sample of 167 cellular numbers whose owners or users were already known, she found that Melissa Data was only able to accurately identify the users of four of these numbers (2.4%). Id. ¶ 14. Using named plaintiffs as an example illustrates Melissa Data’s substantial shortcomings. Melissa Data associated the mobile phone number that Plaintiffs claim belongs to Charles Fitzgerald with someone named “Kelly Fansler,” Daley Decl. ¶ 10, a person that Mr. Fitzgerald 4 As noted above, once Legendary provided email addresses it had obtained from Relevate to Handstack broken down into curated segments, it had no further involvement in the process of matching this email information to phone numbers. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 18 of 40 PageID 1450 10565681 - 11 - testified he has never heard of, Ex. D at 57:10-24. Similarly, named plaintiff Ophelia Parker’s number was associated with someone named “Edwin Diaz,” Daley Decl. ¶ 10, who similarly has no relationship to Ms. Parker, Exhibit E at 42:13-22. Finally, while Melissa Data’s records did associate the third named plaintiff, Joseph Naso, with his number, it also associated that same number with his wife, Kelli Naso, even though she did not receive a Warcraft text and would not be a class member. Daley Decl. ¶ 10; Ex. F (Deposition Transcript of Joseph Naso) at 8:22- 9:2. See Sherman v. Yahoo! Inc., No. 13CV0041-GPC-WVG, 2015 WL 5604400, at *6 (S.D. Cal. Sept. 23, 2015) (defendant’s records could not establish ascertainability where evidence indicated that “a single mobile number . . . may be associated with multiple” users). In short, one of Plaintiffs’ proposed methods for ascertaining the class is hopelessly flawed. ii. Plaintiffs’ expert evidence is conclusory and unsupported and does not provide a reliable basis for identifying those who received the Warcraft Texts Plaintiffs next claim that, “even if, for whatever reason, the telephone number is used by someone different than the person indicated by Defendants’ records, Plaintiff’s expert, Anya Verkhovskaya, has provided an administratively feasible way to confirm the identity of the person to whom text messages were delivered.” Mot. at 8-9. This is demonstrably not so. Ms. Verkhovskaya nakedly asserts that she can identify the names and addresses of potential class members using “reputable data vendors, such as LexisNexis, Experian, Nexxa Group, Inc. (“Nexxa”), Microbilt, Corporation, TransUnion [TLO], and others.” Plaintiffs’ Ex. E, ¶ 5; Mot. at 9.5 But Verkhovskaya has offered absolutely “[n]o data, testing methodology or empirical evidence” to show that these methods are reliable. McGuire v. Ryland Grp., Inc., No. 6:05-CV- 5 Plaintiffs’ Motion claims that Verkhovskaya can also identify class members by “subpoenaing cell phone companies.” Mot. at 9. This is entirely speculative. Her report makes no mention of subpoenas, nor have Plaintiffs served any such subpoenas in this case. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 19 of 40 PageID 1451 10565681 - 12 - 1421-ORL-22, 2007 WL 7951261, at *5 (M.D. Fla. June 21, 2007) (excluding expert testimony); see also McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1240 (11th Cir. 2005) (Expert testimony should have been excluded where “not support[ed] . . . with sufficient data.”). The Eleventh Circuit has affirmed denial of certification, where, like here, an expert’s proposed method “was incomplete, insofar as [plaintiff] did not explain how the data would aid class-member identification.” Karhu, 621 F. App'x at 949. The Court should similarly reject Verkhovskaya’s proposed method as other courts have done. See Southwell v. Mortg. Inv’rs Corp. of Ohio, No. C13- 1289 MJP, 2014 WL 3956699, at *4 (W.D. Wash. Aug. 12, 2014) (Verkhovskaya’s “entirely prospective” declaration could not “constitute proof” that certification was appropriate). In contrast to Verkhovskaya’s unsupported assertions, Defendants have adduced actual empirical evidence demonstrating that her proposed methods are not reliable. As explained by Defendants’ expert, Ms. Daley, a specialist in forensic technology investigations involving complex databases, the “historical ownership records” of cell number databases are riddled with inaccuracies due to factors including, but not limited to, “the high rate of reassignment of cellular numbers, . . . the ubiquity of family plans which obscure the identity of the actual user of a cellular number, and [] the anonymity provided by pre-paid plans.” Ex. G (Expert Report of Margaret Daley) ¶ 1. Accordingly, these databases are incapable of accurately identifying the owner of a particular cell number at the time the Warcraft Texts were actually sent (now more than two years ago). Id. ¶¶ 74, 86; Ex. C ¶¶ 68-80. Moreover, unlike Ms. Verkhovskaya, Defendants’ expert, Ms. Daley, actually conducted empirical testing to determine whether the data bases identified by Ms. Verkhovskaya could consistently associate a statistically significant sample of the cell numbers at issue with a unique number. Belying Verkhovskaya’s ipse dixit, they performed miserably. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 20 of 40 PageID 1452 10565681 - 13 - Specifically, Ms. Daley ran a statistically significant sample of names through LexisNexis, TLO, and Microbilt, which are the only services that purport to be able to identify the owner of a mobile phone number on a particular date in the past (as opposed to just the present owner of the number, which is irrelevant given the significant turnover rate in cell phone usage, Ex. G ¶¶ 73-75; Ex. C ¶¶ 71-73). Not only were each of these services unable to identify a unique name for the vast majority of mobile numbers, but there was not a single instance where each of these services “associated the same unique individual with the same cellular number at the time of the Warcraft texts.” Ex. G ¶¶ 38-39. Because Microbilt returned barely any results at all, Ms. Daley then removed it from the analysis and compared the results from just LexisNexis and TLO. These services were only able to identify “the same single name for a putative class member for 7.55% of the cellular telephone numbers tested.” Id. The fact that these data processors agree so rarely is significant because there is no non-arbitrary means of adjudicating which one is more accurate in the event of a disagreement (and even in the few instances when they do agree it is still possible they are relying on the same flawed sources). Id. ¶¶ 40-41. Thus, the evidence adduced by Defendants (as opposed to the untested assertions of Verkhovskaya) demonstrates that at best only 7.55% of Data Provider Percentage of cellular numbers returning no name for the time when the Warcraft texts were received Percentage of cellular numbers returning multiple names for the time when the Warcraft texts were received Percentage of cellular numbers identifying only one name for the time when the Warcraft texts were received LexisNexis 69.79% 3.38% 26.5% TransUnion (TLO) 9.11% 50.5% 40.36% Microbilt 98.44% 0 1.56% Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 21 of 40 PageID 1453 10565681 - 14 - the numbers can be associated with specific individuals using Plaintiffs’ proposed methods. Id. ¶¶ 39-41. The results are even worse when LexisNexis and TLO are compared to the records generated by Melissa Data. Ms. Daley found that LexisNexis, TLO, and the records provided to Handstack associated the same unique person with the same mobile number for just 2.86% of the numbers. Daley Decl. ¶ 12. Thus, contrary to Plaintiffs assertions, the Handstack records do not provide a useful cross-reference making identification of the class easier. Instead, they underscore the inherent and fatal flaws in Plaintiffs method. Again, the shortcomings of this method are illustrated using the named plaintiffs as examples. TLO and LexisNexis associated Charlie Fitzgerald’s number with four other individuals, including Mr. Fitzgerald’s wife, his daughter, his son-in-law, and Kelly Fansler, the same person that was identified by Melissa Data who Mr. Fitzgerald has testified he does not know. Id. ¶ 42. In fact, TLO indicated that there was only a 1% chance that Mr. Fitzgerald was actually the owner of the cell number that Plaintiffs claim is his. Id. Where, as here, Plaintiffs fail to satisfy their burden of demonstrating that their proposed reverse lookup methodology is capable of accurately identifying cell phone users, courts have denied class certification. See, e.g., Jacobs v. Quicken Loans, Inc., No. 15-81386-CIV, 2017 WL 4838567, at *3 (S.D. Fla. Oct. 19, 2017) (denying certification on predominance grounds where expert claimed he had “been able to identify users” through “outside services” but failed to “address the problems . . . . identified by . . . . Defendant’s expert”); Sherman, 2015 WL 560400, at *6 (no ascertainability where reverse lookup process could not “verify that the current owners of the numbers were the owners over two and a half years ago”); Balschmiter v. TD Auto Fin. LLC, 303 F.R.D. 508, 524 (E.D. Wis. 2014) (“[T]here is no reverse-lookup provider that can reliably provide subscriber information at a specified date in the past.”); Jamison v. First Credit Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 22 of 40 PageID 1454 10565681 - 15 - Servs., Inc., 290 F.R.D. 92, 109 (N.D. Ill. 2013) (class not ascertainbale where method could not identify the “people . . . who were the subscribers when the calls were made”). This Court must do the same, particularly because, not only have Plaintiffs failed to meet their burden, but Defendants have produced evidence demonstrating that Plaintiffs’ proposed method is incomplete and inherently unreliable.6 Plaintiffs attempt to counter this by arguing that Verkhovskaya’s “methods” have been accepted by various courts. Indeed, they assert this Court did so in Youngman v. A&B Ins. & Fin., Inc., No. 6:16CV1478ORL41GJK, 2018 WL 1806588, at *1 (M.D. Fla. Apr. 17, 2018). Mot. at 7. That assertion is wholly misleading. The propriety of class certification was not even contested in Youngman, and no party disputed that the class was ascertainable. Rather, Youngman involved an unopposed motion for preliminary approval of a class action settlement, and thus no party had any incentive to challenge Verkhovskaya’s analysis. Further, Plaintiffs falsely assert that, in Youngman, this Court found that Verkhovskaya was “‘clearly’ able to ascertain and define the Class.” Mot. at 7. This too is incorrect. Verkhovskaya was not even tasked with identifying absent class members in Youngman case, and her report makes no mention of reverse lookup methodology. Youngman, Dkt. 61-2. That task was performed by another expert, Eric Robin. Id., Dkt. 61-3 ¶¶ 4-6. Further, ascertaining the class was hardly difficult in Youngman. In that case Plaintiffs’ motion for preliminary approval stated that 90% of class members where readily 6 Plaintiffs served a rebuttal report from Verkhovskaya that purports to answer some of these criticisms, although they did not file this report with their Motion. In it Verkhovskaya claims that she has a “custom” methodology that is not vulnerable to some of the defects identified by Ms. Daley. But Verkhovskaya has not disclosed what her so-called custom methodology is (assuming it exists) or explained how it works. Plaintiffs cannot rely on an expert report that is based on undisclosed data generated using a secret methodology, especially one that they did not even file with their Motion. Placida Prof’l Ctr., LLC v. F.D.I.C., No. 8:09-CV-2221-T-30MAP, 2011 WL 5975268, at *7-8 (M.D. Fla. Oct. 18, 2011) (excluding expert report that failed to “disclose the specific facts, and/or data which were used” or “explain the precise methodology”) aff’d, 512 F. App’x 938 (11th Cir. 2013). Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 23 of 40 PageID 1455 10565681 - 16 - identifiable from Defendants’ own records (and, unlike here, there is no indication that these records were inaccurate). Id., Dkt. 57 at 3. In short, this Court has never affirmed any prior analysis of Plaintiffs’ expert Verkhovskaya, and the Plaintiffs’ suggestion to the contrary is wrong. Of course, what counts most is the quality of Verkhovskaya’s analysis in this case. And, as proved above, it is woefully inadequate to support class certification.7 B. Not Only Are Plaintiffs Unable to Associate Putative Class Members with Phone Numbers that Were Sent a Warcraft Text, Plaintiffs Cannot Determine Whether Putative Class Members Received a Warcraft Text Even assuming that Plaintiffs could somehow accurately associate names with cell phone numbers, which they cannot, their class certification motion still has additional insurmountable ascertainability and predominance defects. Simply put, Plaintiffs have no way of determining which putative class members actually received a Warcraft Text absent an individualized inquiry that defeats the predominance requirement. First, there is no administratively feasible way to distinguish between a particular cellphone subscriber (i.e., the person who owns the number and pays the bill) from the regular user (i.e., the person who actually makes and receives calls). This distinction is critical: The Amended Settlement Agreement does not define “received.” At what point does an individual receive a call? . . . Has a parent received a call if he is the subscriber for a family plan but the call is made to the cellular telephone number of a child who is the regular user and carrier of that cellular telephone under the family plan? See, e.g., Fini v. Dish Network, L.L.C., 955 F. Supp. 2d 1288 (M.D. Fla. 2013). 7 The fact that courts in other unrelated matters have accepted Verkhovskaya’s testimony is likewise irrelevant. See Mot. at 9. First, other courts have rejected her analysis as insufficient. See Southwell, 2014 WL 3956699, at *4. Second, none of the cases identified by Plaintiffs involved situations where Defendants had produced substantial statistical data showing that the class could not be ascertainted using various reverse lookup services and that Verkhovskaya’s methods are demonstrably unreliable. The Court should not simply accept Plaintiffs’ conclusory assertions in the face of contrary evidence that was not presented in the cases on which Plaintiffs rely. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 24 of 40 PageID 1456 10565681 - 17 - Haight, 2015 WL 12830482, at *4–5 (denying certification). This same deficiency is present here.8 For example, Fitzgerald testified it was not he, but his daughter, who actually received the Warcraft Text (Fitzgerald’s daughter is on a family plan of which Fitzgerald is the subscriber). Id. at 10:5-16, 41:25-42:3, 56:13-19. Thus, if anyone is a proper plaintiff, it would be Mr. Fitzgerald’s daughter, not him. See Cellco P’ship v. Plaza Resorts, Inc., No. 12-81238-CIV, 2013 WL 5436553, at *5 (S.D. Fla. Sep. 27, 2013) (Where a telephone subscriber transfers use of a phone to a family member, he or she “also transfers to the primary user the right to consent to the receipt of otherwise prohibited calls and the right to any cause of action accruing as a result of the receipt of a prohibited call.”). Plainly, Mr. Fitzgerald and his daughter cannot both be class members based on the same text. “[T]he TCPA allows only one recovery per each allegedly illegal call.” Sacchi v. Care One, LLC, No. 2:14-CV-00698 SDW, 2015 WL 3966034, at *6 (D.N.J. June 30, 2015); See also Currier v. PDL Recovery Grp., LLC, No. 14- 12179, 2017 WL 712887, at *12 (E.D. Mich. Feb. 23, 2017) (same). Further, there is no administratively feasible way of distinguishing between subscribers and users of cell phones on a class wide basis given the ubiquity of group and family plans like the one used by Mr. Fitzgerald and his family. Ex. G ¶ 68; Ex. C ¶¶ 74-76. In the case of cellular numbers that are part of family or group subscriptions, the name of the account holder, such as a parent or spouse, may be reported rather than the actual user of the cellular number or vice versa. . . .Thus, even in the rare cases in which the Data Processors manage to associate the same unique individual with the same number, and even assuming that this association was not based on inaccurate information, there is still no way to 8 Inasmuch as Plaintiffs’ proposed classes are defined to include those to whom Defendants “sent” or “placed” texts messages (rather than those who “received” text messages), Mot. at 4-5, the proposed definitions present similar, and additional problems. Is a text message “sent” or “placed” to the subscriber? Or, rather, is it “sent” or “placed” to the user of the cell phone associated with the number to which the text message is “sent” or “placed.” Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 25 of 40 PageID 1457 10565681 - 18 - determine whether that particular individual is the account holder, the actual user of the number, or another family member who uses a different number on the same plan. Ex. G ¶ 68. Plaintiffs have offered no method of solving these problems. Finally, and independently, Plaintiffs have failed to demonstrate that an administratively feasible way exists to determine whether a cell number that was sent a text actually received it.9 Plaintiffs claim that the available records in this case “specifically identif[y] those phone numbers that actually received text messages by filtering out those text messages that failed or were otherwise undelivered.” Mot. at 8. But, again, this is not true. As Defendants’ expert Ken Sponsler demonstrated, the Twilio logs on which Plaintiffs rely only reveal whether the text message was delivered to the cellphone carrier such as Verizon or AT&T, not whether it was delivered to any actual user. Ex. C ¶ 57. And, there are multiple reasons why a carrier may fail to transmit the message on to the user, including, but not limited to: (1) the user has turned off the text messaging feature of his or her phone or informed their carrier that they do not wish to receive texts from unknown numbers, (2) the carrier may have experienced technical difficulties, or (3) the user may be using a pre-paid phone that has run out of data. Id. ¶¶ 58-64. It is thus probable that the Warcraft Text never reached numerous numbers (potentially many thousands or more, especially given that there are 50 million prepaid numbers in circulation) even where the Twilio logs indicate that the message was “delivered.” See id. ¶¶ 64, 70. Yet there is no feasible way to identify who these individuals are (even assuming names could be reliably associated with a mobile number in the first place). In such circumstances, class certification must be denied. See Sandusky, 863 F.3d at 470 (affirming denial of class 9 To the extent that Plaintiffs intend to argue that receipt is irrelevant because the mere sending of a text is sufficient under the TCPA, their proposed class would violate Article III standing requirements as explained in Section III, infra. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 26 of 40 PageID 1458 10565681 - 19 - certification in TCPA case where 25% of intended recipients did not actually receive a fax). C. There is No Way to Determine Whether a Phone Number Was Used for Personal or Business Purposes Three of Plaintiffs’ four proposed classes—the “Do-Not-Call” class, “Out of Time” class, and “Internal Procedures” class—are based on alleged violations of 47 C.F.R. § 64.1200(c) and (d). Critically, both sections only cover calls or texts made to “residential telephone subscriber[s].” Id. The regulations do “not prohibit calls to businesses.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C. Rcd. 14014, 14040 (2003). Accordingly, to recover under these sections, Plaintiffs must prove that each text was sent to a residential number as opposed to a business or other non-residential line. See Cunningham v. Rapid Response Monitoring Services, Inc., 251 F. Supp. 3d 1187, 1201 (M.D. Tenn. 2017) (“To prevail under 47 C.F.R. § 64.1200(c)(2), Plaintiff must establish that his cellular number is used for residential purposes.”). Here, this requires substantial individualized inquiries precluding certification. See Southwell, 2014 WL 3956699, at *4 (denying certification based on expert’s “inability to ascertain . . . whether any given phone number was assigned to a business”); see also Bank v. Ind. Energy Grp. LLC, No. 12-cv-1369, 2014 WL 4954618, at *4 (E.D.N.Y. Oct. 2, 2014) (“limited discovery” required to determine if number had “been held out to the public [as a] business number”). There is no reliable way to ascertain whether any phone number allegedly sent a Warcraft Text was a business or residential phone. Exhibit G ¶¶ 80-83. Plaintiffs do not even address this issue in their Motion, and Verkovskaya makes only a conclusory assertion that she can use LexisNexis to exclude business numbers from the class. But, as Ms. Daley explains, LexisNexis cannot reliably be used to identify business lines. Id. In particular, LexisNexis does Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 27 of 40 PageID 1459 10565681 - 20 - not capture many types of business phones, such as cell phones provided by an employer to its employees or cell phones owned by an employee but reimbursed by a business. Id. ¶ 80. Again, unlike Ms. Verkovskaya, Ms. Daley actually tested Lexis’s ability to identify business lines and found that it failed to identify at least half of numbers listed as business lines by other sources (which are themselves highly limited). Id. ¶¶ 80, 82. To take just one illustrative example, when Daley ran the purported number for Verkhovskaya’s business, Class Expert Group, through one data processor, it identified the owner as “‘Louise M. Breitlow’ . . . a 72 year-old woman residing in Thiensville, Wisconsin.” Id. ¶ 49. Moreover, Plaintiffs’ own exhibit confirms the presence of business numbers in the proposed classes. Many of the purported class members responded to texts from Handstack by indicating that their phones were business lines. See Mot., Ex. A (listing responses such as “This is a business phone”). D. There is No Way to Determine Whether a Recipient Was “Called” Outside of the Permissible Time Range on a Class Wide Basis Section 47 C.F.R. § 64.1200(c)(1) prohibits telephone solicitations to “[a]ny residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location).” Plaintiffs’ proposed “out-of-time” class seeks certification of a class of 528 persons who allegedly received two or more such “out of time” texts. Plaintiffs claim that it is possible to ascertain when any given text was initiated by cross referencing the Twilio call logs, which indicate the time each message was purportedly sent, along with the number’s area code and the zip code associated with that number in Melissa Data’s records. This method is fatally flawed. First, as discussed above, Plaintiffs assume (contrary to their own allegations) that Melissa Data’s records accurately associate zip codes with phone numbers. Second, the area code of a cellphone number by itself is not a reliable method for Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 28 of 40 PageID 1460 10565681 - 21 - ascertaining the time of day a message was sent. Indeed, it is quite common for cell phones users to receive messages outside the area code associated with their number. Unlike landlines, the area code for a mobile phone may not correspond to where its owner ever resided or now actually resides. Ex. G ¶ 61–62. In some areas over 50% of residents have phone numbers corresponding to a different state. Id. Moreover, even if the area code and zip code were correct, the user of the phone could have been travelling in a different time zone at the time they received the text. Id. ¶ 63. For these reasons, “[a]dditional investigation would be needed on a number-by-number basis to confirm where the user of any given telephone number resided” and where each user was actually located at the time the text was received. Id. These inquiries defeat class certification on both ascertainability and predominance grounds. III. PLAINTIFFS’ PROPOSED CLASSES VIOLATE ARTICLE III STANDING REQUIREMENTS AND CANNOT SATISFY PREDOMINANCE “Federal jurisdiction is circumscribed by the case or controversy requirement of Article III of the Constitution, essential to which is the doctrine of standing.” Perry v. Cable News Network, Inc., 854 F.3d 1336, 1339 (11th Cir. 2017). To have standing a plaintiff must have suffered an actual injury “that is concrete and particularized,” such as an invasion of privacy or actual economic harm. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (internal quotations omitted). In the TCPA context, the mere allegation that the defendant violated the “procedural” requirements of the TCPA is not sufficient. See Spokeo, Inc., 136 S.Ct. at 1549; see also Tel. Sci. Corp. v. Hilton Grand Vacations Co., No. 615CV969ORL41DAB, 2015 WL 7444409, at *3 (M.D. Fla. Nov. 20, 2015) (question of whether “bare statutory violations are sufficient to confer Article III standing . . . extends to the TCPA”). These standing requirements apply equally to absent class members. “Article III does Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 29 of 40 PageID 1461 10565681 - 22 - not give federal courts the power to order relief to any uninjured plaintiff, class action or not.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1053 (2016) (Roberts, J., concurring). Thus, “‘[n]o class may be certified that contains members lacking Article III standing.’” Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 690-91 (S.D. Fla. 2014) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)); JWD Auto., Inc. v. DJM Advisory Grp. LLC, No. 215CV793FTM29MRM, 2017 WL 2875679, at *2 (M.D. Fla. July 6, 2017) (refusing to certify class that “includ[ed] . . . members who seemingly lack standing”). Moreover, a class cannot satisfy the predominance requirement where the question of whether each class member has standing necessarily requires individualized inquiries. See, e.g., Legg v. PTZ Ins. Agency, Ltd., 321 F.R.D. 572, 577 (N.D. Ill. 2017) (denying certification on predominance grounds where some members suffered only a technical violation of the TCPA); Branch v. Gov’t Emps. Ins. Co., 323 F.R.D. 539, 552 (E.D. Va. 2018) (certification inappropriate because a “lack of injury means that many individualized questions remain about which class members suffered a concrete injury”). Here Plaintiffs’ proposed classes suffer from two independent and fatal Article III defects. First, as the example of the named Plaintiff Fitzgerald illustrates, many of Plaintiffs’ proposed class members suffered no injury at all because they never received a Warcraft Text nor were they charged for it. Second, Plaintiffs’ “internal procedures” class is predicated entirely on a bare procedural violation of the TCPA, which does not satisfy the standing requirements of Article III of the U.S. Constitution. A. Plaintiffs’ Classes Include Members Who Have Suffered No Injury Defendants acknowledge that a TCPA violation may give rise to constitutional standing where it constitutes an intrusion of privacy—e.g., where a person receives an unwanted call—or Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 30 of 40 PageID 1462 10565681 - 23 - where it causes economic harm—e.g., where a person is charged for a call.10 But that does not mean that Plaintiffs’ proposed classes meet the standing requirement here. As noted above Mr. Fitzgerald never received a Warcraft Text; his daughter did. Ex. D at 10:5-16, 41:25-42:3, 56:13- 19. Nor was Mr. Fitzgerald charged for this text because his family plan has unlimited texting and he never incurred any data overages related to the Warcraft Text. Id. at 81:2-15, 115:8- 117:14. Accordingly, Mr. Fitzgerald suffered no Article III injury. See Horowitz v. GC Servs. Ltd. P’ship, No. 14CV2512-MMA RBB, 2016 WL 7188238, at *7 (S.D. Cal. Dec. 12, 2016) (finding no standing under the TCPA where “Plaintiff . . . was neither charged for the voicemail nor a customary user of the . . . number”). Even assuming that “unwanted telephone calls can create an actual, albeit intangible, injury sufficient to constitute standing, unwanted telephone calls to a relative . . . do not.” Caruso v. Merchs. Credit Ass’n, No. 16-CV-00895-BAS(AGS), 2017 WL 2972415, at *3 (S.D. Cal. July 11, 2017). This very problem infects all of Plaintiffs’ proposed classes. Not only does this Court lack jurisdiction over these classes under Article III, but Defendants should be entitled to depose each of the hundreds of thousands of potential class members, just as they deposed Mr. Fitzgerald (thereby revealing his lack of Article III standing), to determine whether or not any putative class member actually received a Warcraft Text or were charged for one. The need to do so clearly defeats predominance. See, e.g., Legg, 321 F.R.D. at 577; see also Babineau v. Fed. Exp. Corp., 576 F.3d 1183, 1191 (11th Cir. 2009) (“[P]redominance was not satisfied because 10 For the sake of this motion, Defendants’ assume without conceding that the receipt of a text message alone is sufficient to confer Article III standing. This question is currently pending before the Eleventh Circuit, Salcedo v. Hanna, No. 17-14077 (11th Cir. appeal docketed June 26, 2017), and Defendants reserve all rights. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 31 of 40 PageID 1463 10565681 - 24 - ‘adjudication of Plaintiffs’ claims on a class basis would be swamped by individual factual inquiries into the activities of each’” class member.).11 B. Plaintiffs’ “Internal Procedure” Class Violates Article III Plaintiffs assert that the “FCC prohibits placing telemarketing calls unless the caller has instituted internal procedures for maintaining a list of people who request not to be called.” Mot. at 5 (citing 47 C.F.R. § 64.1200(d)). Plaintiffs allege that Defendants lacked such a procedure and thus seek to represent a class of all persons who received more than one Warcraft Text regardless of whether or not they requested to be placed on an internal do-not-call list after receiving the first text. Id. at 6. As a threshold matter, the Court should not even consider this proposed class as it is not identified in Plaintiffs’ operative Complaint. A plaintiff cannot “considerably expand[] a class on a certification motion from what was originally proposed in the Complaint.” Vincent v. Money Store, 304 F.R.D. 446, 453 (S.D.N.Y. 2015); Cabrera v. Gov’t Emps. Ins. Co., No. 12-61390-CIV, 2014 WL 11881001, at *1 (S.D. Fla. Oct. 22, 2014) (“[T]he Eleventh Circuit has cautioned against ‘judicial rewriting of the plaintiffs pleading.’”) (quoting Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930-31 (11th Cir. 1983)). But this is exactly what Plaintiffs are attempting to do. In their operative complaint, Plaintiffs defined their “internal procedure” class as all persons “who (a) received more than one text message from Defendants . . . more than 30 days after requesting that their telephone numbers be placed on Defendants’ internal do-not-call list.” TAC ¶ 158. This is consistent with FCC regulations, which provide a 30 day window to comply with any do- 11 Plaintiffs also cannot avoid this problem by redefining the class to include only individuals who suffered an injury in fact. As noted above, there is no administratively feasible way of determining whether a potential class member was the subscriber or primary user of a cell number based on the call records in this case. Even if there was, the call records give no indication of whether a subscriber was charged for a call, and Plaintiffs have not proposed any feasible method of discerning this fact. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 32 of 40 PageID 1464 10565681 - 25 - not-call request. 47 C.F.R. § 64.1200(a)(vi). As Plaintiffs no doubt quickly discovered, however, their proposed class contained no members, as the alleged Warcraft Text messaging campaign lasted less than four weeks, as Plaintiffs’ own expert evidence demonstrates. Plaintiffs’ Ex. J ¶ 11. So, without seeking leave to amend their complaint (which they have already done three times), Plaintiffs expanded their class to include anyone who had received more than one Warcraft Text regardless of whether they requested to be on an internal do-not-call list or not. Plaintiffs’ proposed class thus ballooned from zero to 71,000 purported class members. Mot. at 13. This was improper and highly prejudicial. Independently, Plaintiffs’ new class definition violates Article III because it is expressly predicated on a bare procedural injury (to wit, Defendants’ alleged failure to implement an internal do-not-call procedure). But mere “technical deficiencies” in a Defendants’ opt-out procedure under the TCPA are not sufficient to create Article III standing where the plaintiff “never attempted to opt-out of receiving future” calls. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 17-1794, 2018 WL 3719694, at *3 (8th Cir. Aug. 6, 2018). Here, however, Plaintiffs’ class includes hundreds of thousands of members who never affirmatively requested to be placed on an internal do-not-call list. Indeed, as Plaintiffs’ own exhibit demonstrates, many class members were excited to receive the Warcraft Text and even affirmatively invited further communications. See, e.g., Plaintiffs’ Ex. A at 23 (“I’m already goin fam, really excited.”), 28 (“Awesome movie, best wishes!”), 65 (“Ok inform me”), 67 (“Please resend”), 68 (“What is this about can u tell me a little moreabout it”). Such class members have clearly suffered no injury. See, e.g., Legg, 321 F.R.D. at 577 (“[I]f an adopter has expressly agreed and expected to receive calls from defendant, and did receive those calls, the adopter has not been injured in any way, even if Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 33 of 40 PageID 1465 10565681 - 26 - defendants technically violated a procedural requirement of the TCPA.”).12 Moreover, even if some class members did request to opt out, none of these class members were texted again after the 30-day regulatory grace period. In short, not a single member of this class has suffered an injury in fact. IV. MR. FITZGERALD AND CLASS COUNSEL CANNOT ADEQUATELY REPRESENT THE CLASS To obtain certification, Plaintiffs must establish that they “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy requirement “applies to both the named plaintiff and counsel.” London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003). A lead plaintiff is not an adequate representative where there are “significant personal and financial ties” between the lead plaintiff and class counsel. Id. at 1255. Such ties “create[] a present conflict of interest—an incentive for [the plaintiff] to place the interests of [class counsel] above those of the class.” Id. at 1255. Here, a fundamental conflict of interest exists between Charlie Fitzgerald and the other members of the class due to a close family relationship between Mr. Fitzgerald and class counsel. Mr. Fitzgerald’s son-in-law (Jacob Phillips) is one of three attorneys at class counsel’s firm. See Ex. D at 14:5-14; Ex. H (Plaintiffs’ Response to First Set of Interrogatories) at 1. Mr. Phillips worked on this case for over six months and is likely the one to originate it. Ex. H at 1. 12 Plaintiffs rely on Cordoba v. DIRECTV, LLC, 320 F.R.D. 582, 600 (N.D. Ga. 2017), which is currently under review by the Eleventh Circuit, where a district court held that the nuisance of receiving a text was sufficient to confer standing even if class members did not affirmatively request not to be called. However, unlike here, there was no indication in Cordoba that some class members appreciated the text and did not want to opt out (meaning they suffered no nuisance from receiving the text). Further, to the extent Cordoba holds that a bare procedural injury is sufficient so long as class members actually received a text, defendants respectfully submit that this case was wrongly decided (and inconsistent with cases such as Legg and St. Louis Heart Ctr. cited above). Article III standing doesn’t just require that a plaintiff suffer some injury; it requires that this injury be “fairly traceable to the challenged conduct.” Spokeo Inc., 136 S. Ct. at 1547. For purposes of Plaintiffs’ “internal procedure” class, the “challenged conduct” is the alleged failure to implement an internal do-not-call procedure, not the mere sending of a text. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 34 of 40 PageID 1466 10565681 - 27 - Consequently, Charlie Fitzgerald has a substantial incentive to sacrifice the interests of the class to increase the fees to class counsel and enrich or otherwise benefit his daughter and son-in-law. Although Plaintiffs claim that Mr. Phillips will not personally share in any fee award, there is nothing to enforce that assurance, or even any guarantee that Mr. Phillips has been walled off from this case. To the contrary, he has worked on it. Even if Mr. Phillips doesn’t receive a direct share of any fee award, it defies belief that he will not benefit personally, professionally, and financially if his small (3 lawyer) firm suddenly receives a large fee award. Nor is there any assurance that Mr. Phillips will not benefit indirectly, such as through a raise or annual bonus based on the firm’s performance. Mr. Fitzgerald also stands to benefit professionally should his daughter and son-in-law receive a financial windfall, because he is a certified financial planner who manages his daughter’s finances. Ex. D at 22:24-23:9. The Seventh Circuit addressed a similar situation in Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014), where class counsel was the son-in-law of the lead plaintiff. The court held that that “[t]he impropriety of allowing [plaintiff] to serve as class representative as long as his son- in-law was lead class counsel was palpable” because this “relationship [] created a grave conflict of interest; for the larger the fee award to class counsel, the better off [plaintiff’s] daughter and son-in-law would be financially.” Id. at 722, 724. Where such a conflict exists, class certification should be denied based on inadequacy of representation. See Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1376 (11th Cir. 1984) (affirming denial of certification due to relationship between lead plaintiff and class counsel); English v. Apple, Inc., No. 14-cv-01619-WHO, 2016 WL 1188200, at *13 (N.D. Cal. Jan. 5, 2016) (same). In addition, both the lead plaintiff and class counsel should be disqualified from the case. See Eubank, 753 F.3d at 724; Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1154 (8th Cir. 1999) Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 35 of 40 PageID 1467 10565681 - 28 - (affirming disqualification of class counsel and its firm where “two of the class representatives were close relatives (the husband and a sister-in-law) of a partner in the firm”). Here, Plaintiffs’ counsel disregarded their fiduciary duty to the class by proceeding with Mr. Fitzgerald despite his obvious conflict of interest. This conflict is not overcome simply because additional named Plaintiffs were later added or because other attorneys have no family ties to Mr. Fitzgerald. See English, 2016 WL 1188200 at *13 (taint of conflict still required denial of certification despite removal of conflicted plaintiffs and presence of additional counsel). This is thus a distinct reason why class certification should be denied. V. THE COURT LACKS PERSONAL JURISDICTION WITH RESPECT TO OUT-OF-STATE CLASS MEMBERS Assuming for the sake of argument that any or all of the foregoing independent deficiencies in Plaintiffs’ class certification motion were ignored, at the very least Plaintiffs’ class must still be limited only to putative class members who reside in the state of Florida. This is because the Court lacks personal jurisdiction with respect to the claims of non-Florida class members. See Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1783 (2017). In its 2017 landmark Bristol-Myers decision, the U.S. Supreme Court held that a state court could not exercise personal jurisdiction over a non-resident corporation with respect to claims brought by non-resident plaintiffs as a part of a mass action. Id. Under these circumstances, personal jurisdiction is only appropriate where “the suit . . . aris[es] out of or relat[es] to the defendant’s contacts with the forum.” Bristol–Myers, 137 S.Ct. at 1780. In Bristol- Myers, the out-of-state plaintiffs did not suffer any injury in the forum state, and the “conduct giving rise to the nonresidents’ claims occurred elsewhere.” Id. at 1782. Thus, the state court violated the defendant’s due process rights by exercising jurisdiction over these claims. Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 36 of 40 PageID 1468 10565681 - 29 - The reasoning of Bristol-Myers applies with full force to class actions under the TCPA. “Rule 23 does not expand a court’s personal jurisdiction over a defendant. . . . [A] defendant who is not subject to personal jurisdiction on an individual claim also is not subject to jurisdiction on a class-action claim.” Howe v. Samsung Elecs. Am., Inc., No. 1:16CV386-RH/GRJ, 2018 WL 2212982, at *4 (N.D. Fla. Jan. 5, 2018). Thus, applying Bristol-Myers, numerous courts in cases brought under the TCPA and other federal statutes have refused to exercise personal jurisdiction over nationwide class actions where, as here, the defendant is not a resident of the forum, and the allegedly offending calls did not originate in the forum. See, e.g., id.; Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840, 864 (N.D. Ill. 2018) (“dismiss[ing] the [TCPA] claims of the non-Illinois-resident class members”); America’s Health & Res. Ctr. Ltd. v. Alcon Labs., Inc., No. 16 C 4539, slip. op. at 4-5 (N.D. Ill. June 15, 2018) (same); see also Maclin v. Reliable Reports of Tex., Inc., 314 F. Supp. 3d 845, 849 (N.D. Ohio Mar. 26, 2018) (dismissing FLSA claims of non-Ohio plaintiffs). Here, there can be no doubt that, under Bristol-Myers, the Court lacks personal jurisdiction over the claims of non-resident class members. Neither Legendary, Universal, nor Handstack are incorporated in Florida, nor are their principal places of business here. TAC ¶¶ 15, 17-23; Ex. I (Deposition Transcript of Jessica Lee) at 6:13-8:10. See BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549, 1558 (2017) (“[A] corporate defendant is ‘at home,’ ... are the corporation’s place of incorporation and its principal place of business.”). Moreover, there is no allegation that the Warcraft Texts, which were sent from Handstack’s systems in San Francisco, California, Ex. I at 6:13-8:10, somehow originated in Florida, or that the non-resident class members received the texts in Florida, Bristol–Myers, 137 S.Ct. at 1780. Although some courts have held that Bristol-Myers does not apply in the class action Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 37 of 40 PageID 1469 10565681 - 30 - context, the Court should decline to follow these incorrectly reasoned decisions.13 Rule 23 does not expand personal jurisdiction, nor can it as this would violate the Rules Enabling Act. See Howe, 2018 WL 2212982, at *4. The Rules Enabling Act empowers the judiciary to promulgate “general rules of practice and procedure,” but such rules cannot “abridge, enlarge or modify any substantive right.” 28 U.S.C. §§ 2072(a) and (b). Accordingly, the Supreme Court has repeatedly held that Rule 23 cannot abrogate the rights a defendant would enjoy in an individual action. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612 (1997) (“Rule 23’s [class action] requirements must be interpreted in keeping with . . . the Rules Enabling Act.’”); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999) (adopting a “limiting construction” of Rule 23 in order to “minimiz[e] potential conflict with the Rules Enabling Act” and “avoid[] serious constitutional concerns”). Thus, “[u]nder the Rules Enabling Act, a defendant’s due process interest should be the same in the class context.” Practice Mgmt. Support Servs, 301 F. Supp. 3d at 861. Here, allowing non-resident class members to obtain relief against Defendants in Florida court for injuries that have no connection to Florida would violate Defendants’ due process rights. “The constitutional requirements of due process does not wax and wane when the complaint is individual or on behalf of a class.” In re Dental Supplies Antitrust Litig., No. 16 Civ. 696 (BMC)(GRB), 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 2017). Thus, at the very least, the non-Florida class member claims cannot proceed. CONCLUSION Based on any or all of the foregoing grounds, Plaintiffs’ Renewed Motion for Class Certification should be denied. 13 See, e.g., Tickling Keys, Inc. v. Transamerica Fin. Advisors, Inc., 305 F. Supp. 3d 1342, 1350 (M.D. Fla. 2018). Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 38 of 40 PageID 1470 10565681 - 31 - Dated: August 27, 2018 Respectfully, IRELL & MANELLA LLP GREENBERG TRAURIG, P.A. SMOLKER, BARTLET, LOEB, HINDS & THOMPSON, PA /s/ Steven A. Marenberg Steven A. Marenberg E. Colin Thompson Florida Bar No.: 0684929 ColinT@smolkerbartlett.com AlyssaC@smolkerbartlett.com Michael Labbee Florida Bar No. 106058 MichaelL@smolkerbartlett.com RochelleB@smolkerbartlett.com SMOLKER, BARTLETT, LOEB, HINDS & THOMPSON, P.A. 100 N. Tampa Street, Suite 2050 Tampa, Florida 33602 Telephone: (813) 223-3888 Attorneys for Defendant Handstack P.B.C. Steven A. Marenberg admitted pro hac vice) California Bar No. 101033 smarenberg@irell.com Michael D. Harbour, Esq. (admitted pro hac vice) California Bar No. 298185 mharbour@irell.com Stephen M. Payne, Esq. (admitted pro hac vice) California Bar No. 310567 spayne@irell.com IRELL & MANELLA, LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Telephone: 310.277.1010 Robert J. Herrington, Esq. (admitted pro hac vice) California Bar No. 234417 herringtonr@gtlaw.com GREENBERG TRAURIG LLP 1840 Century Park E., Suite 1900 Los Angeles, CA 90067 Telephone: 310.586.7700 Gregory W. Herbert, Esq. Florida Bar No. 0111510 herbertg@gtlaw.com GREENBERG TRAURIG LLP 450 South Orange Ave., Suite 650 Orlando, FL 32801 Telephone: 407.420.1000 Attorneys for Defendants Universal Pictures, a division of Universal City Studios, LLC; Legend Pictures, LLC; Legendary Pictures Funding, LLC, Legendary Analytics, LLC Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 39 of 40 PageID 1471 10565681 - 32 - CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28th day of August, 2018, I caused the foregoing to be electronically filed with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Gregory W. Herbert Gregory W. Herbert Case 6:16-cv-01193-CEM-DCI Document 117 Filed 08/28/18 Page 40 of 40 PageID 1472