McMillion et al v. Rash Curtis & Associates

Filing 315

PRETRIAL ORDER NO. 2 RE: DAUBERT MOTIONS, SELECT MOTIONS IN LIMINE, AND PROPOSED JURY INSTRUCTIONS & QUESTIONNAIRE. Signed by Judge Yvonne Gonzalez Rogers on 4/4/2019. (fs, COURT STAFF) (Filed on 4/4/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IGNACIO PEREZ,
Plaintiff,

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vs.

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RASH CURTIS & ASSOCIATES,
Defendant.

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United States District Court
Northern District of California

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CASE NO. 16-cv-03396-YGR
PRETRIAL ORDER NO. 2 RE: DAUBERT
MOTIONS, SELECT MOTIONS IN LIMINE,
AND PROPOSED JURY INSTRUCTIONS &
QUESTIONNAIRE
Re: Dkt. Nos. 252, 253, 254, 262, 285, 286,
293, 295

Plaintiff Ignacio Perez1 bring this class action against defendant Rash Curtis & Associates
(“Rash Curtis”) alleging that defendant called plaintiff and class members without consent.2
On September 6, 2017, the Court certified four classes including Perez as a class
representative, both for injunctive relief pursuant to Rule 23(b)(2) and damages pursuant to Rule
23(b)(3).3 (Dkt. No. 81, (“Cert. Order”).) On February 2, 2018, the Court ruled on the parties’
cross-motions for summary judgment. (Dkt. No. 167 (“SJ Order”).) In that order, the Court
granted plaintiffs’ motion for partial summary judgment regarding the dialer systems Rash Curtis
used to make the phone calls at issue and held that those dialers constitute Automatic Telephone
Dialing Systems (“ATDSs”) within the meaning of the TCPA. (Id. at 2.) The Court also granted
plaintiffs’ motion for partial summary judgment on the issue of prior express consent regarding

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On March 5, 2019, parties stipulated to voluntary dismissal of prior plaintiffs Sandra
McMillion and Jessica Adekoya. (See Dkt. No. 292.)
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More specifically, plaintiff allege violations of the (i) Telephone Consumer Protection
Act, 47 U.S.C. Sections 227, et seq. (the “TCPA”); (ii) Fair Debt Collection Practices Act, 15
U.S.C. section 1692, et seq. (the “FDCA”); and (iii) the California Rosenthal Fair Debt Collection
Practices Act, Cal. Civ. Code section 1788, et seq., (the “Rosenthal Act”). (Dkt. No. 1
(“Compl.”).)
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Plaintiffs moved for class certification with respect to their TCPA claims noting their
intent to pursue the FDCPA and Rosenthal Act claims on an individual basis. (Dkt. No. 66 at 2.)

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Perez and held that Rash Curtis never possessed prior express consent to call Perez himself. (Id. at

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3, 11, 12.) On June 18, 2018, the Court denied Rash Curtis’s motion to reconsider its summary

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judgment order. (Dkt. No. 199 (“Reconsideration Order”).) On January 23, 2019, the Court

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denied plaintiffs’ motion for terminating sanctions. (Dkt. No. 250, (“Sanctions Order”).)
Now before the Court are defendant’s Daubert motions to strike and exclude the opinions

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of plaintiff’s expert witnesses Randall A. Snyder (Dkt. No. 254 (“Snyder Motion”)), Anya

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Verkovskaya (Dkt. No. 252 (“Verkovskaya Motion”)), and Colin B. Weir (Dkt. No. 253 (“Weir

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Motion”)).4 In addition, in anticipation of trial, the parties have filed motions in limine (Dkt. No.

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261, 262) and proposed jury instructions (Dkt. No. 285 (“Jury Instructions”)).
Having carefully reviewed the pleadings, the papers submitted, and oral arguments on

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United States District Court
Northern District of California

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March 19, 2019 and March 29, 2019, and for the reasons set forth more fully below, the Court

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DENIES defendant’s motions to strike or exclude and addresses the relevant motions in limine and

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proposed jury instructions and objections thereto as described below.
MOTIONS TO STRIKE AND EXCLUDE EXPERTS

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I.

BACKGROUND
The background giving rise to this action is well-known and the Court will not repeat it

here.5 (See, e.g., SJ Order at 3-5.) Further, it has been a particularly litigious case.

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Relevant to the instant Daubert motions, plaintiff offers in support of its case the opinions

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of three experts: Randall A. Snyder (Dkt. Nos. 254-2, 254-3 (“Snyder Rep.”)), Anya Verkovskaya

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(Dkt. No. 252-2 (“Verkovskaya Rep.”)), and Colin B. Weir (Dkt. No. 253-2 (“Weir Rep.”)).

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Also before the Court are two administrative motions. (Dkt. Nos. 293, 295.) As stated
on the record during the March 19, 2019 hearing, and confirmed herein, having carefully
considered the briefing and arguments submitted, the Court GRANTS plaintiff’s administrative
motion to shorten the duration of the class notice period and DENIES defendant’s administrative
motion for leave to file a decertification motion.
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Plaintiff alleges that defendant repeatedly called him on his telephone using an ATDS
and/or an artificial or prerecorded voice. (Compl. ¶¶ 2, 4, 6.) Plaintiff offers evidence that to
make these calls, defendant employs three dialers, namely, the (i) DAKCS/VIC Software System
(“DAKCS/VIC”), (ii) Global Connect system (“Global Connect”), and (iii) TCN (collectively,
“Dialers”). Parties have extensively litigated defendant’s use and the function of these Dialers.
(See SJ Order, Reconsideration Order, Sanctions Order.)
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Defendant now moves to strike from the record the testimony of and exclude from testifying at

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trial all three experts. (See, e.g., Snyder Motion at 1.)

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All three motions focus primarily on plaintiff’s experts’ methodology for identifying which

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telephone numbers in Rash Curtis’ account database Rash Curtis obtained via skip-tracing and any

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analysis or opinion based thereupon. (See, e.g. id. at 2-8.) Defendant’s account database supports

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storage of up to ten “telephone number” fields for each account. (Dkt. No. 212 at 3.) Telephone

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fields numbers 1 through 4 are reserved for phone numbers that defendant purportedly receives

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from its creditor-clients, whereas phone numbers obtained via skip tracing are loaded into phone

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fields 5 through 10. (See Dkt. No. 212-1, Ex. 2 at 14:11-15:7, 15:14-16) (“[P]hone field 1 through
4 are what comes in from the client, whatever phone number comes in from the client.”).)

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United States District Court
Northern District of California

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Plaintiff’s experts rely on the data in defendant’s account database, and inferences

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extracted therefrom, to determine which and how many phone numbers allegedly called by

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defendant were obtained using skip-tracing. (Snyder Rep. ¶¶ 83-101.) This information also

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forms the basis of plaintiff’s process for identifying class members, tabulating class size, and

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estimating class damages.6 (See Verkovskaya Rep.; Weir Rep.) Defendant’s Daubert motions

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contend that in forming their opinions and conducting their analysis, plaintiff’s experts rely on a

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false assumption that Rash Curtis obtained each, and every phone number placed in fields 5

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through 10 via skip-tracing, despite the fact that defendant’s representatives have suggested that

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“not every number in [fields 5 through 10] was obtained through skip-tracing.” (Snyder Motion at

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2.) These opinions were developed over the course of the litigation and in light of the information

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disclosed by defendant.

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II.

LEGAL STANDARD REGARDING EXPERT OPINIONS

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Federal Rule of Evidence 702 permits opinion testimony by an expert as long as the

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witness is qualified, and their opinion is relevant and reliable. An expert witness may be qualified

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by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The proponent of

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expert testimony has the burden of proving admissibility in accordance with Rule 702. Fed. R.

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The four classes certified in this case are each limited to persons whose phone numbers
Rash Curtis obtained through skip tracing. (See Cert. Order at 15-16.)
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Evid. 702, Advisory Committee Notes (2000 amendments). An expert should be permitted to

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testify if the proponent demonstrates that: (i) the expert is qualified; (ii) the evidence is relevant to

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the suit; and (iii) the evidence is reliable. See Thompson v. Whirlpool Corp., 2008 WL 2063549,

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at *3 (W.D. Wash. 2008) (citing Daubert, 509 U.S. at 589–90). The trial judge has discretion to

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determine reasonable measures of reliability. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153

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(1999).

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III.

ANALYSIS
A. Opinion of Randall A. Snyder

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Snyder’s opinion addresses:

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(1) the functions of automatic telephone dialing (Snyder Rep. ¶¶ 17-31);

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United States District Court
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(2) the reliability of dialing system software manuals and user guides (id. ¶¶ 32-37);

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(3) the nature and function of the specific dialing systems allegedly used by defendants

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(id. ¶¶ 38-58);
(4) defendant’s use of a prerecorded voice when calling landline and cellular numbers

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(id. ¶¶ 59-65);

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(5) the nature and function of call detail records (“CDRs”), including the ascertainability of

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the origin of the phone numbers contained therein, namely whether the numbers were obtained via

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skip-tracing (id. ¶¶ 66-101);
(6) whether plaintiff Perez meets the general requirements of a representative class

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member, including that defendant obtained his phone number via skip-tracing (id. ¶¶ 102-106);

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and

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(7) defendant’s knowledge that its conduct violated the TCPA (id. ¶ 107).7

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Defendant devotes the bulk of its motion to its argument the Court should strike and exclude

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Snyder’s testimony regarding (5) the nature and function of CDRs and (6) Perez’s satisfaction of

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the class representative requirements. Defendant contends that Snyder’s “opinions regarding skip-

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The Court notes that plaintiff has agreed to exclude the opinion presented in paragraph
107 of Snyder’s report. Accordingly, the Court DENIES AS MOOT defendant’s motion with respect
to that opinion.
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tracing lack foundation and are subject to a speculative ‘analytical gap’ that cannot be crossed

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with the facts which were given and upon which he relied.” (Snyder Motion at 2.) Specifically,

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defendant argues that Snyder’s opinion relies on a false assumption that Rash Curtis used skip-

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tracing to obtain each and every one of the numbers found in fields 5 through 10 of defendant’s

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account database. (Id.) Defendant contends that although fields 5 through 10 “contain skip-traced

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numbers, not every number in those fields was obtained through skip-tracing.” (Id.) Therefore,

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according to Rash Curtis, because Snyder did not request or obtain the documents necessary to

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determine accurately which phone numbers were procured through skip-tracking, his opinions

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regarding the ascertainability of the proposed class members and the suitability of plaintiff Perez

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as a class representative are speculative, unsupported, and lacking adequate foundation. (Id. at 6.)

United States District Court
Northern District of California

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Plaintiff disputes Rash Curtis’ assertion that Snyder so improperly relied. (Dkt. No. 257

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(“Snyder Opp.”) at 18.) However, the Court need not resolve the accuracy of defendant’s

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contention because any arguments that Snyder based his opinions on an improper assumption go

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to the weight, not the admissibility of his testimony. See California v. Kinder Morgan Energy

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Partners, LP, 613 Fed.Appx. 561, 564 (9th Cir. 2015) (finding that the validity of an assumption

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underlying an expert’s opinion goes to the weight and not admissibility of that opinion); see also

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City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (stating that under

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Daubert, “[t]he judge is supposed to screen the jury from unreliable nonsense opinions, but not

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exclude opinions merely because they are impeachable”) (internal quotations omitted).

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Defendant also argues that the Court should also strike and exclude Snyder’s opinion

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regarding the dialing system itself, namely topics (1), (2), (3), and (4). (Snyder Motion at 6-8, 21-

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23.) Specifically, Rash Curtis avers that Snyder’s testimony regarding automatic telephone

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dialing and dialing systems, including the Dialers used by defendant will not aide the trier of fact

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because the Court has already determined that Rash Curtis’s Dialers constitute ATDSs within the

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meaning of the TCPA. (Id. at 22.) Defendant also argues that these opinions should be excluded

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on the grounds that Snyder based them on nothing more than his review of the Dialers’ manuals

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and failed to inspect the actual equipment. (Id. at 7.)

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As a preliminary matter, the Court notes that much of Snyder’s testimony regarding
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automatic telephone dialing and dialers represents general background information not specific to

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this case or the Dialers at issue. (See Snyder Rep. ¶¶ 17-37.) Moreover, Snyder’s testimony

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regarding the specific Dialers at issue here, including their capacity to use a prerecorded voice,

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does not, as defendant contends, assert an impermissible legal conclusion that those dialers

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constituted ATDSs within the meaning of the TCPA. (See Snyder Rep. ¶¶ 38-65.) He discusses

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only the Dialers’ function and capacities. (See id.) As the function and capacities of these devices

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bear on the central factual issues before the trier of fact, Snyder’s opinions on these topics are

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relevant. The Motion is Denied.

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B. Opinion of Colin B. Weir
Weir’s report identifies 534,698 autodialed calls made to telephone numbers belonging to

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United States District Court
Northern District of California

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class members. (See Weir Rep. ¶ 15.) In so tabulating, Weir used Rash Curtis’ account database.

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Specifically, Weir aggregated a list of phone numbers appearing in phone fields 5 through 10 and

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subtracted from that list those numbers also appearing in fields 1 through 4. (Id. ¶ 9.) This

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calculation resulted in a list of 1,484,646 unique phone numbers. (Id.) Following additional

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calculations, Weir determined that Rash Curtis placed 534,698 calls to class members using one of

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the Dialers. (Id. ¶ 15.)

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In attacking’s Weir’s method for calculating the number of calls made to class members’

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numbers, defendant again argues that Weir improperly assumed that Rash Curtis obtained every

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number found in phone fields 5 through 10 via skip-tracing. (Weir Motion at 4.) Instead, Rash

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Curtis avers, “the phone numbers stored in fields five through ten come from a variety of sources.”

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(Id. at 5.) Defendant further suggests that Weir’s methodology “is nothing more than simple

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multiplication and will not assist the trier of fact[.]” (Id.)

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As discussed above, defendant’s argument that Weir’s methodology relied on a false

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assumption that Rash Curtis obtained all of the numbers maintained in phone fields 5 through 10

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via skip-tracing goes to the weight, not the admissibility, of Weir’s opinion. See also Messick v.

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Novartis Pharmaceuticals Corp., 747 F.3d 1193, 1199 (9th Cir. 2014) (noting that issues

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regarding the correctness of an expert’s opinion, as opposed to its relevancy and reliability, “are a

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matter of weight, not admissibility”). Additionally, the Court disagrees with defendant’s
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characterization of the complexity of the calculations underlying Weir’s analysis. While a juror

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may be able to do simple math calculations, it would be unreasonable to expect jurors to analyze

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over a million telephone calls. Thus, in this context, the Court finds the opinions regarding the

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comparison, tabulation, and multiplication of the telephone calls at issue is within the scope of

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Rule 702. The Motion is Denied.
C. Opinion of Anya Verkovskaya

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Verkovskaya’s class member data tabulation report opines on the number of wireless
telephone numbers belonging to individuals other than the debtors associated with the number in

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defendant’s database and called by defendant within the class period.8 (See Verkovskaya Rep.)

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She so calculates using the defendant’s debtor database information. (See id.) Defendant again

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United States District Court
Northern District of California

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argues that Verkovskaya’s tabulation “lacks foundation and is subject to a speculative ‘analytical

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gap’ that cannot be crossed with the facts which were given and upon which she relied.”

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(Verkovskaya Motion at 1.) As with Snyder and Weir’s opinions, Rash Curtis avers that

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Verkovskaya’s analysis relies on a false assumption that “every number found in phone fields 5

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through 10 . . . was skip[-]traced[.]” (Id.) Defendant also contends that Verkovskaya’s

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methodology uses an algorithm that is “not testable” and “is also based on other ‘blackbox’

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information and unobservable, proprietary processes of LexisNexis and others.” (Verkovskaya

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Motion at 6.)

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As discussed above, defendant’s argument that Verkovskaya’s methodology relied on a

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false assumption that Rash Curtis obtained all of the numbers maintained in phone fields 5 through

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10 via skip-tracing goes to the weight, not the admissibility, of her opinion. The same is true of

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defendant’s argument that the third-party sources Verkovskaya used provided inaccurate data. See

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Krakauer v. Dish Network L.L.C., No. 1:14-cv-333, 2015 WL 5227693, at *8-9 (M.D.N.C. Sept.

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8, 2015) (declining to exclude opinion of Verkovskaya based on argument that she did not test the

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reliability of data from Lexis or Nexxa). The Motion is Denied.

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Verkovskaya identified 40,420 telephone numbers that fit these criteria. (Verkovskaya
Rep. ¶ 26.)
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PLAINTIFF’S MOTIONS IN LIMINE

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As a preliminary matter, the Court confirms in light of defendant’s withdrawals, plaintiff

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withdrew Motions in limine Nos. 4 and 7. (See Dkt. No. 303 at 15:2-3, 23:6-16.) In addition, as

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reflected in the Amended Exhibit List, defendant has withdrawn exhibits 501, 502, 514, and 515,

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accordingly that portion of Motion in Limine No. 5 is moot. (See Dkt. No. 304.)

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Plaintiff’s Motion in Limine No. 3 to preclude defendant from introducing needlessly
cumulative trial testimony and wasting the jury’s time is DENIED WITHOUT PREJUDICE to

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reasserting at trial. The fact that multiple witnesses may testify as to similar material is not in and

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of itself cumulative. Further the Court has imposed time limits to ensure that the parties are being

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efficient with the presentation of evidence. See U.S. v. Elksnis, 528 F.2d 236, 239 (9th Cir. 1975)

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United States District Court
Northern District of California

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(“The district court has considerable discretion even with admittedly relevant evidence in rejecting

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that which is cumulative.”).

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Plaintiff’s Motion in Limine No. 5 as it relates to exhibits 580 and 581 is DENIED

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WITHOUT PREJUDICE

to reasserting at trial given the defendant’s proffer that such documents

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would only be used for impeachment or rebuttal purposes. Obviously, defendant would have to

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have the proper foundation even in that context.

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Plaintiff’s Motion in Limine No. 6 to preclude defendant from introducing evidence

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regarding a purported “good faith defense” to make autodialed calls to plaintiff and class members

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is GRANTED IN PART and DENIED IN PART.

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With respect to plaintiff Perez, defendant may not assert that it acted in good faith in

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calling Perez and therefore is not liable under the TCPA to him for the calls. However, Rash

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Curtis may argue that because it had a good faith belief that it possessed prior express consent to

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call the phone number belonging to plaintiff Perez, defendant is not liable for treble damages

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under the statute. The Court has previously ruled that Rash Curtis did not have prior express

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consent to call plaintiff Perez. (SJ Order at 11-12; see also Reconsideration Order.) Therefore,

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defendant may not assert a good faith defense as to whether Rash Curtis violated the TCPA by

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calling plaintiff Perez. However, whether Rash Curtis had a good faith belief that it possessed

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prior express consent to call the phone number belonging to plaintiff Perez bears on plaintiff’s
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claim for treble damages, which requires that a defendant engaged in knowing and/or willful

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violations of the TCPA. See Compl. ¶ 60; see also 47 U.S.C. § 227(b)(3)(C).
With respect to the class, defendant may present evidence that it had prior express consent

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to call class members. As, the TCPA specifically exempts a caller from liability if the caller has

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received “prior express consent” from the recipient to be called. 47 U.S.C. § 227(b)(1)(A). The

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Ninth Circuit has not addressed whether other general good faith defenses may be raised in a

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TCPA claim. See Springer v. Fair Isaac Corp., No. 14-cv-02238-TLN-AC, 2015 WL 7188234,

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*3 (E.D. Cal. Nov. 16, 2015). Accordingly, courts within the Ninth Circuit have allowed for

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TCPA defendants to raise prior express consent defenses, which is a form of good faith defense.
Scatterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009); Reardon v. Uber

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United States District Court
Northern District of California

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Technologies, Inc., No. 14-CV-05678-JST, 2015 WL 4451209, at *6 (N.D. Cal. July 19, 2015);

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Chyba v. First Financial Asset Management, Inc., No. 12-cv-1721-RTB (WVG), 2014 WL

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1744136, at *10 (S.D. Cal. Apr. 30, 2014). Moreover, for the same reasons regarding treble

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damages stated above, even if defendant does not have evidence of prior express consent to call

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class members, Rash Curtis may present evidence that it had a good faith belief that it possessed

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prior express consent to a phone number belonging to a class member and is therefore not liable

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for treble damages under the TCPA.

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Plaintiff’s Motion in Limine No. 8 to preclude defendant and its counsel from making any

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statements or arguments to the jury regarding defendant’s ability to pay any judgment in this case

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or the impact a significant verdict could have on defendant’s business is GRANTED. The parties

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now agree that the Court will determine damages after findings by the jury. (See Dkt. No. 309

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60:25 – 61:1-7.) Accordingly, any such statements are irrelevant and lack probative value.
The Court will address plaintiff’s Motions in limine Nos. 1, 2, and 9 and defendant’s

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corresponding Motion in limine No. 1 in a separate order.

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JURY INSTRUCTIONS

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As a preliminary matter, the Court notes that parties have agreed on joint proposed jury

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instructions numbers 1-28, 31, and 32. (See Jury Instructions at 1-2.) Moreover, prior to

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distribution of the final jury instructions to the jury, the Court will provide parties a draft of the

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instructions as well as an opportunity for comment and discussion. In advance of that distribution,

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the Court addresses parties’ disputed proposed jury instructions.

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Regarding Proposed Instruction No. 29, the Court has already determined that:

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(1) Rash Curtis did not have prior express consent to call plaintiff Perez’s cellular

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United States District Court
Northern District of California

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telephone (see SJ Order 11-12; see also Reconsideration Order);
(2) the Dialers used by Rash Curtis are ATDSs within the meaning of the TCPA (see SJ
Order at 6-8; see also Reconsideration Order); and
(3) plaintiff Perez is a proper class representative (see Cert. Order at 11-12 ).

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Accordingly, the Court will not instruct the jury that each of these assertions constitute an

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affirmative defense that defendant may prove at trial. However, as noted above, Rash Curtis may

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assert, as a defense to liability for treble damages only, that defendant acted in a good faith belief

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that it had prior express consent to call Perez’s phone and, therefore, did not knowingly or

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willfully violate the TCPA with respect to Perez. The Court will instruct the jury accordingly.

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Regarding Proposed Instruction No. 30, the Court will adopt an instruction similar to that

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proposed by plaintiff. Prior express consent, or lack thereof, is not an element of a TCPA claim

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but an affirmative defense against such a claim. 47 U.S.C. § 227(b)(1)(A).

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The Court DENIES plaintiff’s objection to defendant’s Proposed Instruction No 33 and will

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allow the jury to ask questions of the witnesses, and the parties, during trial and will instruct the

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jury accordingly.

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The Court GRANTS plaintiff’s objection to defendant’s Proposed Instruction No. 34 and

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will not instruct the jury on the definition of an ATDS. The Court has already determined, as a

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matter of law, that the Dialers at issue in this case are ATDSs as defined by the TCPA. (See SJ

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Order at 6-8; see also Reconsideration Order.)

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The Court GRANTS IN PART and DENIES IN PART plaintiff’s objection to
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defendant’s Proposed Instruction No. 35. As noted above with respect to plaintiff’s Motion in

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limine No. 6, because the Court has already decided that defendant did not possess prior express

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consent to call plaintiff Perez, defendant may not assert that it acted in good faith in calling

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plaintiff and therefore is not liable under the TCPA for the calls to Perez. (See SJ Order at 11-12;

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see also Reconsideration Order.) By contrast, Rash Curtis may argue that because it had a good

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faith belief that it possessed prior express consent to call the phone number belonging to plaintiff

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Perez, defendant is not liable for treble damages under the statute. Thus, while such evidence is

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not relevant as to whether Rash Curtis violated the TCPA by calling plaintiff Perez, it is probative

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on plaintiff’s claim for treble damages, which requires that a defendant engaged in knowing and/or
willful violations of the TCPA. See Compl. ¶ 60; see also 47 U.S.C. § 227(b)(3)(C). By

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United States District Court
Northern District of California

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extension, the evidence that defendant had prior express consent to call class members is relevant.

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See Scatterfield, 569 F.3d at 955; Reardon, 2015 WL 4451209, at *6; Chyba, 2014 WL 1744136,

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at *10. The Court will instruct the jury accordingly.

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The Court GRANTS plaintiff’s objection to defendant’s Proposed Instruction No. 36 and

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will not instruct the jury regarding the purported “safe harbor” defense. As the Court has

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previously noted, the D.C. Circuit’s decision in ACA International v. Federal Communications

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Commission is not binding upon this Court. See Reconsideration Order at 6 (citing 885 F.3d 687

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(D.C. Cir. 2018)); see also Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1049-50 (9th Cir.

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2018) (finding that “[b]ecause the D.C. Circuit exercised its authority to set aside the FCC’s

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interpretations of the definition of an ATDS in the 2014 order, 28 U.S.C. § 2342, and any prior

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FCC rules that were reinstated by that order, we conclude that the FCC’s prior orders on that issue

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are no longer binding on us” and applying statutory interpretation to determine the definition of an

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ATDS). Moreover, the D.C. Circuit in ACA International set aside “not only [the Federal

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Communications Commission’s (“FCC”)] allowance of a one-call safe harbor, but also its

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treatment of reassigned numbers more generally.” 885 F.3d 687, 708 (D.C. Cir. 2018). Therefore,

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the ACA court “set aside the Commission’s treatment of reassigned numbers as a whole, id. at 709,

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and no portion of the FCC’s “reasonable reliance approach,” as described by defendant, remains

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following ACA International. Although defendant is correct that the decision in ACA
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International did not seem to contemplate leaving in place a “strict liability regime,” nor did the

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court suggest that it was leaving in its place a “reasonable reliance” standard. See id. at 706-710.

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Defendant extends too far.
Further, in the wake of ACA International, the FCC has adopted new rules to create a safe

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harbor from TCPA liability for inadvertent calls to reassigned and recycled numbers that apply

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only to those callers who use the FCC’s new database of reassigned numbers to determine if a

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number has been reassigned. See Second Report and Order, In re Advanced Methods to Target

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and Eliminate Unlawful Robocalls, CG Docket No. 17-59, FCC 18-177 (Dec. 12, 2018), available

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at https://docs.fcc.gov/public/attachments/FCC-18-177A1.pdf. In so adopting, the FCC expressed

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a desire to create a narrow safe harbor from TCPA liability and explicitly declined to adopt a more

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United States District Court
Northern District of California

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expansive version. Id. at 13. Additionally, the FCC characterized the court’s decision in ACA

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International as favorably describing the then-proposed safe harbor for callers that check the

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database as “consistent with the Commission’s past practice of taking a reasonable reliance

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approach when interpreting the TCPA,” id. at 14 (emphasis supplied), further undermining that

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“reasonable reliance” represents a “standard” for dealing with reassigned numbers following ACA

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International.
The Court DEEMS WITHDRAWN defendant’s Proposed Instruction No. 37, which addresses

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statutory damages, because, as noted above, the parties now agree that the Court will determine

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damages after findings by the jury. (See Dkt. No. 309 60:25 – 61:1-7.) Therefore, the Court need

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not instruct the jury on how to calculate damages.
The Court GRANTS plaintiff’s objection to defendant’s Proposed Instruction No. 38.

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Whether plaintiff Perez “is an adequate class representative” and “is a member of each of the

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certified classes” (Jury Instructions at 64) are legal issues for the Court. (See Cert. Order at 11-

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12.)
CONCLUSION

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For the foregoing reasons, the Court DENIES defendant’s motions to strike or exclude the

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opinions of plaintiff’s expert witnesses and addresses the relevant motions in limine and disputed

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proposed jury instructions as referenced above.
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Additionally, attached hereto as Exhibit A is a draft of the juror questionnaire. Any
comments thereupon shall be submitted to the Court by no later than Monday, April 15, 2019.

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This Order terminates Docket Numbers 252, 253, 254, 293, and 295.

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IT IS SO ORDERED.

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Dated: April 4, 2019
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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Exhibit A

JUROR QUESTIONNAIRE 
Please PRINT your answers 
To Be Completed by Jurors called to the Courtroom of the Hon. Yvonne Gonzalez Rogers for the Trial of: 
Ignacio Perez, et al v. Rash Curtis & Associates 
Case Number:  4:16‐cv‐03396‐YGR 

Name:  

Age:  

Birthplace:   

Residence:  

Years:  

Prior Residence:  

Years:   

Education:  Highest Grade Completed:  

Degrees:   

College/Vocational Schools attended:  

Areas of Study:   

Current Occupation/Position:  

Length of Service:   

Employer:   

Describe Any Supervisory Roles:   

Prior Occupation/Position:  

Length of Service:   

Employer:   

Describe Any Supervisory Roles:   

Current Status (Circle):  Single (living alone/with others) 

Married 

Separated  Divorced 

Widowed 

Occupation & Employer of Adults Living in the Same Household:   

Children:  Age(s)  

Occupation(s) if employed:   

□ NO □ IF NO, do you use it regularly at work or home? YES □ NO □ 
Do You OR any CLOSE Family/Friends have military Service or Law Enforcement Training? YES □ NO □ 
Is English your first language? YES 

Have You Ever Served on a Jury?   Circle:  YES  NO 

Number of times:  

Date(s) of Service:   

Circle:  State Court   Federal Court  Both 

□  NO □ 

Did each jury reach a verdict?   YES 
[CONTINUED ON NEXT PAGE] 

Circle:  Civil Case 

Criminal Case 

Both 

□  NO□ 

Have you ever served as Foreperson? YES 

y  

1. Have You Or Any Family Members Or Friends Ever Worked In Collections or had to Collect a Debt against a 

□ NO □ 

third party? YES 

If yes, provide basic details:   

□ NO □ 

2. Have You Or Any Family Members Or Friends Had Any Experience With Debt Collectors? YES 
If yes, provide basic details:   

□ NO □ 

3. Have You Ever Been Convicted of a Felony? YES 
If yes, provide basic details:   

□ NO □ 

4. Have You Ever Testified in any Court Proceeding? YES 
If yes, describe:   

□ NO □ 

5. Have You Ever Been Involved in a Lawsuit? YES 
If yes, describe:   

□ NO □ 

6. Do You Have Any Strong Opinions on Class Action Lawsuits? YES 
If yes, describe:   

7. In this case, a class of plaintiffs has sued a corporation.  Do you believe the corporation should have settled 
the case rather than go to trial just because it is a corporation?  YES □  NO □   

If yes, describe:  

 Indicate the strength of your opinions on any of the following statement:    
There are too many lawsuits.  

Strongly Agree 

Agree   

 Disagree 

   Strongly Disagree   

No Opinion 

Finish the following sentence by circling an answer: 
In general, I think Damages Awards from civil lawsuits are_______ 

Too high 

Too low 

 Just Right 

    I am not sure/No opinion    

7. Is there any other issue you would like to discuss with the judge regarding your ability to serve as a juror in 
this case?  If YES, please describe briefly: 
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p 

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The following is a list of potential witnesses and persons affiliated with the case. CIRCLE any names of those 
who you know or with whom you are personally familiar: 
Individuals 
Adekoya, Jessica 
Bird, Darrin 
Bursor, Scott 
Caldwell, Geraldine 
Correa, Dan 
Ellis, Mark E. 
Fisher, L. Timothy 
Griffith, Amanda N. 
Iglesias, Lawrence K. 
Keith, Bob 
Keith, Nick 
Kizer, Steve 
Krivoshey, Yeremey O. 
McMillion, Sandra 
North, Blake 
Paff, Chris 
Paff, Terrence 

Individuals Cont’d.
Patterson, Lex
Perez, Ignacio
Reed, Blair E.
Reynoso, Daniel
Snyder, Randall A.
Sonognini, Shane
Steinheimer, Andrew M.
Valenti, Anthony P.J.
Verkhovskaya, Anya
Weir, Colin B.
Entities
Rash Curtis & Associates
Ellis Law Group LLP
Bursor & Fisher, P.A.

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING INFORMATION IS TRUE AND CORRECT. 
SIGNATURE:  

DATE:   

Additional space for Explanations if needed (please include the number of the question): 
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