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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDWARD MAKARON, on behalf of
himself and all others
similarly situated,

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Plaintiff,

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v.

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ENAGIC USA, INC.,

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Defendants.
___________________________

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Case No. CV 15-05145 DDP (Ex)

ORDER GRANTING PLAINTIFF’S MOTION
FOR CLASS CERTIFICATION
[Dkt. No. 78]

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Presently before the court is Plaintiffs’ Motion for Class
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Certification.

Having considered the submissions of the parties

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and heard oral argument, the court grants the motion and adopts the
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following Order.
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I.

Background

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Defendant Enagic USA, Inc. (“Enagic”) is a “direct selling
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company” that markets alkaline water filtration and ionization
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systems.

Enagic does not sell devices to consumers in the United

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States directly, but instead utilizes a network of thousands of
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distributors.

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independent contractors or are controlled by Enagic.

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The parties dispute whether these distributors are

On May 18, 2015, Plaintiff received a call on his cell phone.

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(Declaration of Edward Makaron ¶ 3.)

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call, he heard a 22-minute prerecorded phone message encouraging

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him to purchase an Enagic water machine and to become a

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distributor.

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Plaintiff received a phone call from Gary Nixon, who tried to

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convince Plaintiff to purchase an Enagic product and recruit

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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

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unlawful “to make any call . . . using any automatic telephone

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dialing system or an artificial or prerecorded voice . . . to any .

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. . cellular telephone service.”

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also unlawful to initiate a phone call to a residential phone line

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with an artificial or prerecorded voice.

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Plaintiff represents that he has obtained information from third

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party calling services, including Phone Prospector and Phone

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Burner, that three of the thousands of distributors associated with

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Defendant made over fifteen thousand phone calls using third party

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phone dialing systems.

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alleges that Engagic and/or its distributors, who are alleged to be

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Enagic’s agents, called Plaintiff’s cell phone with an automatic

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dialing system and played a pre-recorded message, in violation of

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the TCPA.

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Rule of Civil Procedure Rule 23(b)(2) and 23(b)(3) comprised of

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“[a]ll persons within the United States who received a telephone

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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

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Member’s telephone made through the use of any automatic telephone

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dialing system or an artificial or prerecorded voice, between July

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8, 2011 and Present,” as well as various related subclasses.

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II.

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Legal Standard
The party seeking class certification bears the burden of

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showing that each of the four requirements of Rule 23(a) and at

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least one of the requirements of Rule 23(b) are met.

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Dataprods. Corp., 976 F.2d 497, 508-09 (9th Cir. 1992).

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sets forth four prerequisites for class certification:

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See Hanon v.
Rule 23(a)

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(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

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requirements are often referred to as numerosity, commonality,

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typicality, and adequacy.

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147, 156 (1982).

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See Gen. Tel. Co. v. Falcon, 457 U.S.

In determining the propriety of a class action, the question is

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not whether the plaintiff has stated a cause of action or will

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prevail on the merits, but rather whether the requirements of Rule

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23 are met.

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(1974).

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underlying claim to the extent that the merits overlap with the Rule

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23 requirements, but will not conduct a “mini-trial” or determine at

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this stage whether Plaintiffs could actually prevail.

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Costco Wholesale Corp., 657 F.3d 970, 981, 983 n.8 (9th Cir. 2011);

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see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51

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(2011).

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178

This court, therefore, considers the merits of the

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Ellis v.

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Rule 23(b) defines different types of classes.

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Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2012).

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23(b)(2) requires that the party opposing the class “has acted or

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refused to act on grounds that apply generally to the class . . . .”

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Fed. R. Civ. Proc. 23(b)(2).

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of law or fact common to class members predominate over individual

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questions . . . and that a class action is superior to other

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available methods for fairly and efficiently adjudicating the

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controversy.”

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Leyva v.
Rule

Rule 23(b)(3) requires that “questions

Fed. R. Civ. P. 23(b)(3).

III. Discussion

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As an initial matter, the court observes that Defendant devotes

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a substantial portion of its written opposition to arguments that

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are inapplicable to the instant motion.

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example, that “[t]here is no evidence that either Enagic USA or any

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Enagic distributor used an automated telephone dialing system . . .

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or recorded voice to place calls in violation of the . . . TCPA” and

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repeatedly asserts that “Plaintiff presents no evidence of a TCPA

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violation . . . .”

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having had over 2-years to obtain evidence that such robo or [auto-

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dialed] calls occurred, . . . the Plaintiff was not able to do

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so.”).

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for summary judgment or a mini-trial.

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n.8.

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questions to some extent, this Court will only look to the merits

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“inasmuch as it must determine whether common questions exist, not

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to determine whether class members could actually prevail on the

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merits of their claims.”

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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

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proposed class (Opp. at 5-10) ignore binding Ninth Circuit

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authority.

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“the language of Rule 23 neither provides nor implies that

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demonstrating an administratively feasible way to identify class

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members is a prerequisite to class certification, . . .” and

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declined to impose any such requirement.

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Inc., 844 F.3d 1121, 1133 (9th Cir. 2017).

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opposition, therefore, is simply inapt.

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A.

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Indeed, the Ninth Circuit has explicitly stated that

Briseno v. ConAgra Foods,
Much of Defendant’s

Rule 23(a) Factors
i.

Numerosity

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Numerosity is satisfied if “the class is so numerous that

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joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).

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The Ninth Circuit has elaborated that “impracticable” does not mean

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“impossible,” and that the appropriate inquiry is whether the

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difficulty and inconvenience of litigating separate claims would

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render that course of action impractical.

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Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th Cir. 1964)).

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“numerosity requirement requires examination of the specific facts

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of each case and imposes no absolute limitations.” Gen. Tel. Co. of

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the Nw. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 330

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(1980).

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certify a class, and classes of at least forty members are usually

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found to have satisfied the numerosity requirement.

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Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir. 2003); Davis v. Four

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Seasons Hotel Ltd., 277 F.R.D. 429, 435 (D. Hawaii 2011).

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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

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numerosity because he has done no more than speculate as to the

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number of putative class members.

(Opp. at 20-21.)
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Indeed, a

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plaintiff must show at least a reasonable estimate of class members

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to satisfy Rule 23(a)(1).

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661 (N.D. Cal. 1976.)

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Plaintiff is only speculating as to class size because he cannot

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personally identify any members of the class (Opp. at 21:3),

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however, that position has no merit.

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contention, that the tens of thousands of calls made by Enagic

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distributors through third party dialing services such as

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PhoneBurner are of no moment because those services are “power

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dialers” rather than “auto dialers” involves questions of fact

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beyond the scope of a motion for class certification.

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§ 227(a)(1) (“The term ‘automatic telephone dialing system’ means

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equipment which has the capacity (A) to store or produce telephone

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numbers to be called, using a random or sequential number generator;

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and (B) to dial such numbers.”) (emphasis added).

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identification of hundreds of thousands of phone calls made by third

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party dialing systems on behalf of only a small number of Enagic

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distributors is a sufficient basis to estimate a class size well in

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excess of forty members.

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ii.

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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

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common to the class.”

Fed. R. Civ. P. 23(a)(2).

However, “[t]he

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requirements of Rule 23(a)(2) have been construed permissively, and

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all questions of fact and law need not be common to satisfy the

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rule.”

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Cir.2011) (internal quotation marks and brackets omitted).

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Nevertheless, common questions must be ones that will “generate

Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th

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common answers apt to drive the resolution of the litigation.”

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Dukes, 564 U.S. at 350.

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Common factual and legal questions abound here, including

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questions whether Enagic is liable for its distributors’ actions and

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whether the third party dialing services used, or qualify as,

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autodialer equipment.

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may have used different calling methods is not compelling.

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Plaintiff has identified a small number of third party dialing

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services, the nature and capabilities of which will likely be

Defendant’s brief argument that distributors

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relatively simple to determine and generally applicable to all

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distributors utilizing those services.

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Med. Collection Agency, 320 F.R.D. 513, 517 (C.D. Cal. 2017); Amini

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v. Heart Savers, LLC, No. SACV 15-01139 JVS, 2016 WL 10621698 at *3

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(C.D. Cal. Oct. 17, 2016).

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Defendant’s assertion that questions of individual consent destroy

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commonality.

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TCPA allegations, 47 U.S.C. § 227(b), Defendant would bear the

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burden of showing express consent, and has not provided any evidence

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of such or demonstrated any consent mechanism that might require

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individualized determinations.

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Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017); Stern v. DoCircle,

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Inc., No. SACV 12-2005 AG, 2014 WL 486262 at *8 (C.D. Cal. Jan. 29,

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2014); cf. Blair v. CBE Group, Inc., 309 F.R.D. 621, 628 (S.D. Cal.

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2015) (finding lack of predominance where Defendant provided

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evidence regarding specific mechanism and record keeping regarding

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consent); Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D.

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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

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Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (explaining

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express consent).

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iii. Typicality and Adequacy

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Typicality is satisfied if “the claims or defenses of the

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representative parties are typical of the claims or defenses of the

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class.”

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requirement is to assure that the interest of the named

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representative aligns with the interests of the class.

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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

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representative, and not to the specific facts from which it arose or

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the relief sought. The test of typicality is whether other members

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have the same or similar injury . . . .”

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Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks

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omitted) (citations omitted).

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satisfied if “the representative parties will fairly and adequately

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protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

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Inasmuch as it is conceptually distinct from commonality and

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typicality, this prerequisite is primarily concerned with “the

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competency of class counsel and conflicts of interest.”

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Co. of Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982). Thus,

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“courts must resolve two questions: (1) do the named plaintiffs and

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their counsel have any conflicts of interest with other class

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members and (2) will the named plaintiffs and their counsel

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prosecute the action vigorously on behalf of the class?”

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F.3d at 985.

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Hanon v. Dataproducts

Adequacy of representation is

Gen. Tel.

Ellis, 657

Defendant’s arguments regarding typicality and adequacy center

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on Plaintiff’s inability to recall certain details at his

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deposition, and are not well taken.
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Defendant points out, for

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example, that Plaintiff could not recall whether he received a phone

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call from Enagic itself, had no knowledge of Enagic’s policies

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regarding auto dialers, and did not know whether Enagic has

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agreements with third party dialing services.

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17.)

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mean that he lacks standing to pursue an individual claim, let alone

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represent a class.

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however, how any of Plaintiff’s supposed failings are pertinent to

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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,

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vigorously represent the interests of absent class members, let

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alone implicate questions of standing.

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reasonably be expected to have personal knowledge of Enagic’s own

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business practices and, more importantly, has never asserted that he

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received any type of call from Enagic directly.

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that he and the other members of the putative class received

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improper calls from Enagic distributors.

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confer standing, and this Court can see no reason why Plaintiff’s

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claims are not typical of the class nor why Plaintiff or his counsel

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cannot adequately represent the interests of absent class members.

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See Van Patten, 847 F.3d at 1043.

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B.

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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

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acted or refused to act on grounds that apply generally to the class

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. . . .”

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class is “the indivisible nature of the injunctive or declaratory

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remedy warranted--the notion that the conduct is such that it can be

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enjoined or declared unlawful only as to all of the class members or

Fed. R. Civ. Proc. 23(b)(2).

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The key to a Rule 23(b)(2)

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as to none of them.”

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Certification under Rule 23(b)(2) is not appropriate where the

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primary relief sought is monetary, rather than declaratory or

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injunctive.

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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

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appropriate because Plaintiff seeks statutory damages on behalf of

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the putative class.

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Plaintiff seeks certification of an injunctive class under Rule

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23(b)(2) and a damages class under Rule 23(b)(3).

Defendant appears to ignore, however, that

Courts may, and

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often do, utilize this type of “hybrid” certification.

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Zepeda v. PayPal, Inc., No. C 10-1668 SBA, 2017 WL 1113293 at *17

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(N.D. Cal. Mar. 24, 2017); Raffin v. Medicredit, Inc., No. CV 15-

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4912 GHK, 2017 WL 131745 at *10 (C.D. Cal. Jan. 3, 2017).1

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Defendant’s only other argument is that this case does not involve a

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common course of action on Enagic’s part that might be remedied by a

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single injunction because Enagic’s distributors each formulated

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their own sales methods.

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however, that argument presumes an answer to one of the central,

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common questions at issue in this case.

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found vicariously liable for the actions of its distributors, the

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wrongful conduct alleged here can be enjoined with respect to all

(Opp. at 24.)

See, e.g.,

As discussed above,

Should Enagic ultimately be

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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.
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class members with a single injunction.

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appropriate under Rule 23(b)(2).2

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ii.

Certification is therefore

Rule 23(b)(3)

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A class action may be certified under Rule 23(b)(3) if a

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plaintiff shows that “the questions of law or fact common to class

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members predominate over any questions affecting only individual

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members, and that a class action is superior to other available

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methods for fairly and efficiently adjudicating the controversy.”

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Fed. R. Civ. P. 23(b)(3).

“The Rule 23(b)(3) predominance inquiry

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tests whether proposed classes are sufficiently cohesive to warrant

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adjudication by representation.”

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521 U.S. 591, 623 (1997). Predominance “requires a showing that

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questions common to the class predominate, not that those questions

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will be answered, on the merits, in favor of the class.” Amgen Inc.

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v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 469 (2013).

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Amchem Products, Inc. v. Windsor,

The parties’ arguments regarding Rule 23(b)(3) predominance are

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largely derivative of their other arguments.

Plaintiff asserts that

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because there can be no doubt that use of an auto dialer or a pre-

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recorded message is a violation of the TCPA, the only real issue in

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this case is the common question whether Enagic is vicariously

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liable for the actions of its distributors.

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respond that such an inquiry would necessarily involve

Defendant appears to

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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).
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individualized determinations about Enagic’s liability for each

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separate distributor’s actions.

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however, ignores Plaintiff’s theory of the case.

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contend that Enagic is liable for the actions of certain

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distributors but not others.

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is liable for all of its distributors due to “an employer-employee

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relationship with its Distributors, direct agency through a high

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level of control pursuant to standard contracts, or ratification

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through Enagic’s knowledge about robodialing practices . . . .”3

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(Reply at 18:14-17.)

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(Opp. at 27:8-11.)

This argument,

Plaintiff does not

Rather, Plaintiff contends that Enagic

individualized, questions.

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These theories implicate common, rather than

Defendant also reiterates that individual questions of class

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member consent will predominate.

Defendant again cites to Blair,

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309 F.R.D. at 629, where the court denied Rule 23(b)(3)

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certification in a TCPA case because of individualized questions

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regarding class member consent.

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court emphasized that the defendant in that case had provided some

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evidence that all of the named Plaintiffs had consented, in varying

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ways, to receive phone calls from the defendant.

Critically, however, the Blair

Blair, 309 F.R.D.

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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

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at 629.

See also Connelly, 294 F.R.D. at 578.

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explained, however, “[w]here a party has not submitted any evidence

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of express consent, courts will not presume that resolving such

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issues requires individualized inquiries.”

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519 (quoting Bee, Denning, Inc. v. Capital All. Grp., 310 F.R.D.

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614, 629 (S.D. Cal. 2015)) (internal alteration omitted).

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Defendant’s speculation that individual class members may have

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consented to receive auto dialed or pre-recorded phone messages is

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therefore insufficient to demonstrate that individual questions of

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consent predominate.4

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As the Caldera court

Caldera, 320 F.R.D. at

pursuant to Rule 23(b)(3) is appropriate.

Accordingly, certification of a damages class

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C.

Failsafe Class

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Lastly, Defendant argues that the proposed class should not be

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certified because it is a “failsafe class.”

Failsafe classes are

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defined in terms of success on the merits of the case in a way where

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“whether a person qualifies as a member depends on whether the

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person has a valid claim.”

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HealthSystem, 699 F.3d 802, 825 (7th Cir. 2012); Mullins v. Direct

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Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015).

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has yet to opine on the propriety of failsafe classes.

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Kohl’s Dep’t Stores, No. CV-16-4293, 2016 WL 8919460, at *3 (C.D.

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Cal. Dec. 21, 2016).

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without holding, that Ninth Circuit “caselaw appears to disapprove

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of the premise that a class can be fail-safe.”

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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,

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27
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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.

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1999).

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not be certified because they only allow for two possible results:

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either the class members win, or, “by virtue of losing,” fall

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outside the definition of class membership and are thus not bound by

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the judgment.

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8919460 at 3-4.

Some courts, however, have held that failsafe classes should

Messner, 699 F.3d at 825; see also Pepka, 2016 WL

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This Court need not determine whether failsafe classes are

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appropriate because the class proposed here is not a failsafe class.

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As discussed above, the predominant question here is whether Enagic

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is vicariously liable for auto-dialed or robocalls made by

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distributors.

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who received phone calls from an Enagic distributor will not fall

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outside the parameters of the defined class, will be bound by the

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judgment, and would be barred by res judicata from re-litigating

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their claims against Enagic.

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IV.

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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

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Certification is GRANTED.

The court certifies a class comprised of

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all persons within the United States who received a telephone call

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from Defendant or one of its Distributors, on said Class Member’s

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telephone made through the use of any automatic telephone dialing

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system or an artificial or prerecorded voice, between July 8, 2011

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and Present.

The court also certifies the following subclasses:

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(1) Prerecorded Voice Subclass, comprised of all persons within

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the United States who received a telephone call from Defendant

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or one of its Distributors, on said Class Member’s telephone
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1

made through the use of any system that utilized an artificial

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or prerecorded voice, between July 8, 2011 and Present;

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4

(2) Cell Phone Subclass, comprised of all persons within the

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United States who received a telephone call from Defendant or

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one of its Distributors, on said Class Member’s cellular

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telephone made through the use of any automatic telephone

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dialing system or an artificial or prerecorded voice, between

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July 8, 2011 and Present;

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11

(3) Prerecorded Voice Cell Phone Subclass, comprised of all

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persons within the United States who received a telephone call

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from Defendant or one of its Distributors, on said Class

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Member’s cellular telephone made through the use of any system

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that utilized an artificial or prerecorded voice, between July

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8, 2011 and Present; and

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(4) Prerecorded Voice Cell Phone 2015 subclass, comprised of

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all persons within the United States who received a telephone

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call from Defendant or one of its Distributors, on said Class

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Member’s cellular telephone made through the use of any system

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that utilized an artificial or prerecorded voice, between

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January 1, 2015 and December 31, 2015.

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//

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//

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//

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//

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//
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Plaintiff is appointed Class Representative and Plaintiff’s

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attorneys are appointed as Class Counsel.

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IT IS SO ORDERED.

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Dated: March 13, 2018
DEAN D. PREGERSON
United States District Judge

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