Edward Makaron v. Enagic USA, Inc.

Filing 101

ORDER by Judge Dean D. Pregerson: GRANTING 78 PLAINTIFFS MOTION FOR CLASS CERTIFICATION. See order for details. (shb)

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 EDWARD MAKARON, on behalf of himself and all others similarly situated, 13 Plaintiff, 14 v. 15 ENAGIC USA, INC., 16 Defendants. ___________________________ 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-05145 DDP (Ex) ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION [Dkt. No. 78] 19 Presently before the court is Plaintiffs’ Motion for Class 20 Certification. Having considered the submissions of the parties 21 and heard oral argument, the court grants the motion and adopts the 22 following Order. 23 I. Background 24 Defendant Enagic USA, Inc. (“Enagic”) is a “direct selling 25 company” that markets alkaline water filtration and ionization 26 systems. Enagic does not sell devices to consumers in the United 27 States directly, but instead utilizes a network of thousands of 28 1 distributors. 2 independent contractors or are controlled by Enagic. 3 The parties dispute whether these distributors are On May 18, 2015, Plaintiff received a call on his cell phone. 4 (Declaration of Edward Makaron ¶ 3.) 5 call, he heard a 22-minute prerecorded phone message encouraging 6 him to purchase an Enagic water machine and to become a 7 distributor. 8 Plaintiff received a phone call from Gary Nixon, who tried to 9 convince Plaintiff to purchase an Enagic product and recruit 10 11 When Plaintiff answered the (Makaron Delc. ¶ 3, Ex. M-2.) Plaintiff to be an Enagic salesperson. Two days later, (Makaron Decl., ¶¶ 7-9.) Under the Telephone Consumer Protection Act (“TCPA”), it is 12 unlawful “to make any call . . . using any automatic telephone 13 dialing system or an artificial or prerecorded voice . . . to any . 14 . . cellular telephone service.” 15 also unlawful to initiate a phone call to a residential phone line 16 with an artificial or prerecorded voice. 17 Plaintiff represents that he has obtained information from third 18 party calling services, including Phone Prospector and Phone 19 Burner, that three of the thousands of distributors associated with 20 Defendant made over fifteen thousand phone calls using third party 21 phone dialing systems. 22 alleges that Engagic and/or its distributors, who are alleged to be 23 Enagic’s agents, called Plaintiff’s cell phone with an automatic 24 dialing system and played a pre-recorded message, in violation of 25 the TCPA. 26 Rule of Civil Procedure Rule 23(b)(2) and 23(b)(3) comprised of 27 “[a]ll persons within the United States who received a telephone 28 call from Defendant or one of its Distributors, on said Class 47 U.S.C. § 227(b)(1)(A). It is 47 U.S.C. § 227(b)(1)(B). Plaintiff’s Second Amended Complaint Plaintiff now moves to certify a class under Federal 2 1 Member’s telephone made through the use of any automatic telephone 2 dialing system or an artificial or prerecorded voice, between July 3 8, 2011 and Present,” as well as various related subclasses. 4 II. 5 Legal Standard The party seeking class certification bears the burden of 6 showing that each of the four requirements of Rule 23(a) and at 7 least one of the requirements of Rule 23(b) are met. 8 Dataprods. Corp., 976 F.2d 497, 508-09 (9th Cir. 1992). 9 sets forth four prerequisites for class certification: 10 See Hanon v. Rule 23(a) 13 (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); see also Hanon, 976 F.2d at 508. These four 14 requirements are often referred to as numerosity, commonality, 15 typicality, and adequacy. 16 147, 156 (1982). 11 12 17 See Gen. Tel. Co. v. Falcon, 457 U.S. In determining the propriety of a class action, the question is 18 not whether the plaintiff has stated a cause of action or will 19 prevail on the merits, but rather whether the requirements of Rule 20 23 are met. 21 (1974). 22 underlying claim to the extent that the merits overlap with the Rule 23 23 requirements, but will not conduct a “mini-trial” or determine at 24 this stage whether Plaintiffs could actually prevail. 25 Costco Wholesale Corp., 657 F.3d 970, 981, 983 n.8 (9th Cir. 2011); 26 see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 27 (2011). Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 This court, therefore, considers the merits of the 28 3 Ellis v. 1 Rule 23(b) defines different types of classes. 2 Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2012). 3 23(b)(2) requires that the party opposing the class “has acted or 4 refused to act on grounds that apply generally to the class . . . .” 5 Fed. R. Civ. Proc. 23(b)(2). 6 of law or fact common to class members predominate over individual 7 questions . . . and that a class action is superior to other 8 available methods for fairly and efficiently adjudicating the 9 controversy.” 10 Leyva v. Rule Rule 23(b)(3) requires that “questions Fed. R. Civ. P. 23(b)(3). III. Discussion 11 As an initial matter, the court observes that Defendant devotes 12 a substantial portion of its written opposition to arguments that 13 are inapplicable to the instant motion. 14 example, that “[t]here is no evidence that either Enagic USA or any 15 Enagic distributor used an automated telephone dialing system . . . 16 or recorded voice to place calls in violation of the . . . TCPA” and 17 repeatedly asserts that “Plaintiff presents no evidence of a TCPA 18 violation . . . .” 19 having had over 2-years to obtain evidence that such robo or [auto- 20 dialed] calls occurred, . . . the Plaintiff was not able to do 21 so.”). 22 for summary judgment or a mini-trial. 23 n.8. 24 questions to some extent, this Court will only look to the merits 25 “inasmuch as it must determine whether common questions exist, not 26 to determine whether class members could actually prevail on the 27 merits of their claims.” 28 regarding the ascertainability and administrative feasibility of the Defendant contends, for (Opposition at 1:3-6, 24; 8:16-18 (“[D]espite A motion for class certification is not, however, a motion Ellis, 657 F.3d at 981, 983 Although the merits of a case may overlap with certification Id. Furthermore, Defendant’s arguments 4 1 proposed class (Opp. at 5-10) ignore binding Ninth Circuit 2 authority. 3 “the language of Rule 23 neither provides nor implies that 4 demonstrating an administratively feasible way to identify class 5 members is a prerequisite to class certification, . . .” and 6 declined to impose any such requirement. 7 Inc., 844 F.3d 1121, 1133 (9th Cir. 2017). 8 opposition, therefore, is simply inapt. 9 A. 10 Indeed, the Ninth Circuit has explicitly stated that Briseno v. ConAgra Foods, Much of Defendant’s Rule 23(a) Factors i. Numerosity 11 Numerosity is satisfied if “the class is so numerous that 12 joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). 13 The Ninth Circuit has elaborated that “impracticable” does not mean 14 “impossible,” and that the appropriate inquiry is whether the 15 difficulty and inconvenience of litigating separate claims would 16 render that course of action impractical. 17 Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th Cir. 1964)). 18 “numerosity requirement requires examination of the specific facts 19 of each case and imposes no absolute limitations.” Gen. Tel. Co. of 20 the Nw. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 330 21 (1980). 22 certify a class, and classes of at least forty members are usually 23 found to have satisfied the numerosity requirement. 24 Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir. 2003); Davis v. Four 25 Seasons Hotel Ltd., 277 F.R.D. 429, 435 (D. Hawaii 2011). 26 Harris v. Palm Springs The The Ninth Circuit has required at least fifteen members to Harik v. Cal. Defendant contends that Plaintiff has failed to demonstrate 27 numerosity because he has done no more than speculate as to the 28 number of putative class members. (Opp. at 20-21.) 5 Indeed, a 1 plaintiff must show at least a reasonable estimate of class members 2 to satisfy Rule 23(a)(1). 3 661 (N.D. Cal. 1976.) 4 Plaintiff is only speculating as to class size because he cannot 5 personally identify any members of the class (Opp. at 21:3), 6 however, that position has no merit. 7 contention, that the tens of thousands of calls made by Enagic 8 distributors through third party dialing services such as 9 PhoneBurner are of no moment because those services are “power 10 dialers” rather than “auto dialers” involves questions of fact 11 beyond the scope of a motion for class certification. 12 § 227(a)(1) (“The term ‘automatic telephone dialing system’ means 13 equipment which has the capacity (A) to store or produce telephone 14 numbers to be called, using a random or sequential number generator; 15 and (B) to dial such numbers.”) (emphasis added). 16 identification of hundreds of thousands of phone calls made by third 17 party dialing systems on behalf of only a small number of Enagic 18 distributors is a sufficient basis to estimate a class size well in 19 excess of forty members. 20 ii. 21 Nuyen Da Yen v. Kissinger, 70 F.R.D. 656, To the extent Defendant suggests that Defendant’s remaining See 47 U.S.C. Plaintiff’s Commonality Commonality is satisfied if “there are questions of law or fact 22 common to the class.” Fed. R. Civ. P. 23(a)(2). However, “[t]he 23 requirements of Rule 23(a)(2) have been construed permissively, and 24 all questions of fact and law need not be common to satisfy the 25 rule.” 26 Cir.2011) (internal quotation marks and brackets omitted). 27 Nevertheless, common questions must be ones that will “generate Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th 28 6 1 common answers apt to drive the resolution of the litigation.” 2 Dukes, 564 U.S. at 350. 3 Common factual and legal questions abound here, including 4 questions whether Enagic is liable for its distributors’ actions and 5 whether the third party dialing services used, or qualify as, 6 autodialer equipment. 7 may have used different calling methods is not compelling. 8 Plaintiff has identified a small number of third party dialing 9 services, the nature and capabilities of which will likely be Defendant’s brief argument that distributors 10 relatively simple to determine and generally applicable to all 11 distributors utilizing those services. 12 Med. Collection Agency, 320 F.R.D. 513, 517 (C.D. Cal. 2017); Amini 13 v. Heart Savers, LLC, No. SACV 15-01139 JVS, 2016 WL 10621698 at *3 14 (C.D. Cal. Oct. 17, 2016). 15 Defendant’s assertion that questions of individual consent destroy 16 commonality. 17 TCPA allegations, 47 U.S.C. § 227(b), Defendant would bear the 18 burden of showing express consent, and has not provided any evidence 19 of such or demonstrated any consent mechanism that might require 20 individualized determinations. 21 Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017); Stern v. DoCircle, 22 Inc., No. SACV 12-2005 AG, 2014 WL 486262 at *8 (C.D. Cal. Jan. 29, 23 2014); cf. Blair v. CBE Group, Inc., 309 F.R.D. 621, 628 (S.D. Cal. 24 2015) (finding lack of predominance where Defendant provided 25 evidence regarding specific mechanism and record keeping regarding 26 consent); Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D. 27 574, 578 (S.D. Cal. 2013) (same); see also Satterfield v. Simon & See, e.g. Caldera v. Am. Nor is the court persuaded by Although express consent would indeed be a defense to See Van Patten v. Vertical Fitness 28 7 1 Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (explaining 2 express consent). 3 iii. Typicality and Adequacy 4 Typicality is satisfied if “the claims or defenses of the 5 representative parties are typical of the claims or defenses of the 6 class.” 7 requirement is to assure that the interest of the named 8 representative aligns with the interests of the class. 9 refers to the nature of the claim or defense of the class Fed. R. Civ. P. 23(a)(3). “The purpose of the typicality Typicality 10 representative, and not to the specific facts from which it arose or 11 the relief sought. The test of typicality is whether other members 12 have the same or similar injury . . . .” 13 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks 14 omitted) (citations omitted). 15 satisfied if “the representative parties will fairly and adequately 16 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). 17 Inasmuch as it is conceptually distinct from commonality and 18 typicality, this prerequisite is primarily concerned with “the 19 competency of class counsel and conflicts of interest.” 20 Co. of Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982). Thus, 21 “courts must resolve two questions: (1) do the named plaintiffs and 22 their counsel have any conflicts of interest with other class 23 members and (2) will the named plaintiffs and their counsel 24 prosecute the action vigorously on behalf of the class?” 25 F.3d at 985. 26 Hanon v. Dataproducts Adequacy of representation is Gen. Tel. Ellis, 657 Defendant’s arguments regarding typicality and adequacy center 27 on Plaintiff’s inability to recall certain details at his 28 deposition, and are not well taken. 8 Defendant points out, for 1 example, that Plaintiff could not recall whether he received a phone 2 call from Enagic itself, had no knowledge of Enagic’s policies 3 regarding auto dialers, and did not know whether Enagic has 4 agreements with third party dialing services. 5 17.) 6 mean that he lacks standing to pursue an individual claim, let alone 7 represent a class. 8 however, how any of Plaintiff’s supposed failings are pertinent to 9 the nature of his claims or give any indication that he would not (Opposition at 16- Defendant further claims that Plaintiff’s lack of recollection (Id. at 17-18.) It is unclear to the court, 10 vigorously represent the interests of absent class members, let 11 alone implicate questions of standing. 12 reasonably be expected to have personal knowledge of Enagic’s own 13 business practices and, more importantly, has never asserted that he 14 received any type of call from Enagic directly. 15 that he and the other members of the putative class received 16 improper calls from Enagic distributors. 17 confer standing, and this Court can see no reason why Plaintiff’s 18 claims are not typical of the class nor why Plaintiff or his counsel 19 cannot adequately represent the interests of absent class members. 20 See Van Patten, 847 F.3d at 1043. 21 B. 22 23 Plaintiff could not He claims, rather, This is sufficient to Rule 23(b) factors i. Rule 23(b)(2) Rule 23(b)(2) requires that the party opposing the class “has 24 acted or refused to act on grounds that apply generally to the class 25 . . . .” 26 class is “the indivisible nature of the injunctive or declaratory 27 remedy warranted--the notion that the conduct is such that it can be 28 enjoined or declared unlawful only as to all of the class members or Fed. R. Civ. Proc. 23(b)(2). 9 The key to a Rule 23(b)(2) 1 as to none of them.” 2 Certification under Rule 23(b)(2) is not appropriate where the 3 primary relief sought is monetary, rather than declaratory or 4 injunctive. 5 Dukes, 564 U.S. at 360 (citation omitted). Ellis, 657 F.3d at 986. Defendant argues that certification under Rule 23(b)(2) is not 6 appropriate because Plaintiff seeks statutory damages on behalf of 7 the putative class. 8 Plaintiff seeks certification of an injunctive class under Rule 9 23(b)(2) and a damages class under Rule 23(b)(3). Defendant appears to ignore, however, that Courts may, and 10 often do, utilize this type of “hybrid” certification. 11 Zepeda v. PayPal, Inc., No. C 10-1668 SBA, 2017 WL 1113293 at *17 12 (N.D. Cal. Mar. 24, 2017); Raffin v. Medicredit, Inc., No. CV 15- 13 4912 GHK, 2017 WL 131745 at *10 (C.D. Cal. Jan. 3, 2017).1 14 Defendant’s only other argument is that this case does not involve a 15 common course of action on Enagic’s part that might be remedied by a 16 single injunction because Enagic’s distributors each formulated 17 their own sales methods. 18 however, that argument presumes an answer to one of the central, 19 common questions at issue in this case. 20 found vicariously liable for the actions of its distributors, the 21 wrongful conduct alleged here can be enjoined with respect to all (Opp. at 24.) See, e.g., As discussed above, Should Enagic ultimately be 22 23 24 25 26 27 28 1 This Court therefore respectfully disagrees with the Connelly court’s conclusion that a TCPA class’ “parallel request for injunctive” relief cannot be certified under Rule 23(b)(2) simply because putative class members are also entitled to statutory damages and named plaintiffs may seek “parallel” certification of a damages class under Rule 23(b)(3). Connelly, 294 F.R.D. at 579. 10 1 class members with a single injunction. 2 appropriate under Rule 23(b)(2).2 3 ii. Certification is therefore Rule 23(b)(3) 4 A class action may be certified under Rule 23(b)(3) if a 5 plaintiff shows that “the questions of law or fact common to class 6 members predominate over any questions affecting only individual 7 members, and that a class action is superior to other available 8 methods for fairly and efficiently adjudicating the controversy.” 9 Fed. R. Civ. P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry 10 tests whether proposed classes are sufficiently cohesive to warrant 11 adjudication by representation.” 12 521 U.S. 591, 623 (1997). Predominance “requires a showing that 13 questions common to the class predominate, not that those questions 14 will be answered, on the merits, in favor of the class.” Amgen Inc. 15 v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 469 (2013). 16 Amchem Products, Inc. v. Windsor, The parties’ arguments regarding Rule 23(b)(3) predominance are 17 largely derivative of their other arguments. Plaintiff asserts that 18 because there can be no doubt that use of an auto dialer or a pre- 19 recorded message is a violation of the TCPA, the only real issue in 20 this case is the common question whether Enagic is vicariously 21 liable for the actions of its distributors. 22 respond that such an inquiry would necessarily involve Defendant appears to 23 24 25 26 27 28 2 Defendant also appears to argue that certification is inappropriate because class members will be entitled to different amounts of statutory damages. (Opp. at 23:18-24.) Although that argument appears more pertinent to a Rule 23(b)(3) analysis than a Rule 23(b)(2) analysis, it is, in any event, not persuasive. Differences in damages calculations are not obstacles to class certification. Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988 (9th Cir. 2015), Jimenez v. Allstate Insurance Co., 765 F.3d 1161, 1167 (9th Cir. 2014). 11 1 individualized determinations about Enagic’s liability for each 2 separate distributor’s actions. 3 however, ignores Plaintiff’s theory of the case. 4 contend that Enagic is liable for the actions of certain 5 distributors but not others. 6 is liable for all of its distributors due to “an employer-employee 7 relationship with its Distributors, direct agency through a high 8 level of control pursuant to standard contracts, or ratification 9 through Enagic’s knowledge about robodialing practices . . . .”3 10 (Reply at 18:14-17.) 11 (Opp. at 27:8-11.) This argument, Plaintiff does not Rather, Plaintiff contends that Enagic individualized, questions. 12 These theories implicate common, rather than Defendant also reiterates that individual questions of class 13 member consent will predominate. Defendant again cites to Blair, 14 309 F.R.D. at 629, where the court denied Rule 23(b)(3) 15 certification in a TCPA case because of individualized questions 16 regarding class member consent. 17 court emphasized that the defendant in that case had provided some 18 evidence that all of the named Plaintiffs had consented, in varying 19 ways, to receive phone calls from the defendant. Critically, however, the Blair Blair, 309 F.R.D. 20 21 22 23 24 25 26 27 28 3 Plaintiff has submitted evidence, for example, that class members notified Enagic officials that distributors were improperly utilizing auto dialer and robo-calling devices, and that Enagic not only failed to take any disciplinary action against distributors, but also threatened to seek recovery of legal fees and costs if class members sought to hold Enagic liable. Plaintiff has also submitted evidence of Enagic policies that forbid distributors from using their own marketing materials and require distributors to use advertising methods approved by Enagic, but do not explicitly forbid the use of auto dialer or robocall technology, stating instead that “[t]he use of the Company’s name or copyrighted materials may not be made with automatic calling devices or “boiler room” operations either to solicit distributors or retail customers. (Friedman Decl., Ex. 4 ¶ 54) (emphases added.) 12 1 at 629. See also Connelly, 294 F.R.D. at 578. 2 explained, however, “[w]here a party has not submitted any evidence 3 of express consent, courts will not presume that resolving such 4 issues requires individualized inquiries.” 5 519 (quoting Bee, Denning, Inc. v. Capital All. Grp., 310 F.R.D. 6 614, 629 (S.D. Cal. 2015)) (internal alteration omitted). 7 Defendant’s speculation that individual class members may have 8 consented to receive auto dialed or pre-recorded phone messages is 9 therefore insufficient to demonstrate that individual questions of 10 consent predominate.4 11 As the Caldera court Caldera, 320 F.R.D. at pursuant to Rule 23(b)(3) is appropriate. Accordingly, certification of a damages class 12 C. Failsafe Class 13 Lastly, Defendant argues that the proposed class should not be 14 certified because it is a “failsafe class.” Failsafe classes are 15 defined in terms of success on the merits of the case in a way where 16 “whether a person qualifies as a member depends on whether the 17 person has a valid claim.” 18 HealthSystem, 699 F.3d 802, 825 (7th Cir. 2012); Mullins v. Direct 19 Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015). 20 has yet to opine on the propriety of failsafe classes. 21 Kohl’s Dep’t Stores, No. CV-16-4293, 2016 WL 8919460, at *3 (C.D. 22 Cal. Dec. 21, 2016). 23 without holding, that Ninth Circuit “caselaw appears to disapprove 24 of the premise that a class can be fail-safe.” 25 Inc., 681 F. App’x 605, 607 (9th Cir. 2017) (citing Vizcaino v. U.S. Messner v. Northshore Univ. The Ninth Circuit See Pepka v. Indeed, one Ninth Circuit court has observed, Melgar v. CSK Auto, 26 27 28 4 Defendant also argues, without elaboration, that individualized questions of standing predominate. The basis for this argument is not clear to the court. 13 1 Dist. Court for W. Dist. of Washington, 173 F.3d 713, 722 (9th Cir. 2 1999). 3 not be certified because they only allow for two possible results: 4 either the class members win, or, “by virtue of losing,” fall 5 outside the definition of class membership and are thus not bound by 6 the judgment. 7 8919460 at 3-4. Some courts, however, have held that failsafe classes should Messner, 699 F.3d at 825; see also Pepka, 2016 WL 8 This Court need not determine whether failsafe classes are 9 appropriate because the class proposed here is not a failsafe class. 10 As discussed above, the predominant question here is whether Enagic 11 is vicariously liable for auto-dialed or robocalls made by 12 distributors. 13 who received phone calls from an Enagic distributor will not fall 14 outside the parameters of the defined class, will be bound by the 15 judgment, and would be barred by res judicata from re-litigating 16 their claims against Enagic. 17 IV. 18 Should Enagic prevail on that question, class members See Mullins, 795 F.3d at 661. Conclusion For the reasons stated above, Plaintiff’s Motion for Class 19 Certification is GRANTED. The court certifies a class comprised of 20 all persons within the United States who received a telephone call 21 from Defendant or one of its Distributors, on said Class Member’s 22 telephone made through the use of any automatic telephone dialing 23 system or an artificial or prerecorded voice, between July 8, 2011 24 and Present. The court also certifies the following subclasses: 25 26 (1) Prerecorded Voice Subclass, comprised of all persons within 27 the United States who received a telephone call from Defendant 28 or one of its Distributors, on said Class Member’s telephone 14 1 made through the use of any system that utilized an artificial 2 or prerecorded voice, between July 8, 2011 and Present; 3 4 (2) Cell Phone Subclass, comprised of all persons within the 5 United States who received a telephone call from Defendant or 6 one of its Distributors, on said Class Member’s cellular 7 telephone made through the use of any automatic telephone 8 dialing system or an artificial or prerecorded voice, between 9 July 8, 2011 and Present; 10 11 (3) Prerecorded Voice Cell Phone Subclass, comprised of all 12 persons within the United States who received a telephone call 13 from Defendant or one of its Distributors, on said Class 14 Member’s cellular telephone made through the use of any system 15 that utilized an artificial or prerecorded voice, between July 16 8, 2011 and Present; and 17 18 (4) Prerecorded Voice Cell Phone 2015 subclass, comprised of 19 all persons within the United States who received a telephone 20 call from Defendant or one of its Distributors, on said Class 21 Member’s cellular telephone made through the use of any system 22 that utilized an artificial or prerecorded voice, between 23 January 1, 2015 and December 31, 2015. 24 // 25 // 26 // 27 // 28 // 15 1 Plaintiff is appointed Class Representative and Plaintiff’s 2 attorneys are appointed as Class Counsel. 3 4 IT IS SO ORDERED. 5 6 7 Dated: March 13, 2018 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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