Gordon v. Caribbean Cruise Line, Inc. et al

Filing 148

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 2/8/19.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD GORDON, individually and
on behalf of all others similarly
situated,
Plaintiff,
v.
CARIBBEAN CRUISE LINE, INC.,
a Florida corporation,
Defendant.

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14 C 5848
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
On July 28, 2014, Plaintiff Richard Gordon received an unsolicited text
message sent on behalf of Caribbean Cruise Line, Inc. (“CCL”). And so, Plaintiff filed
suit against CCL, individually and on behalf of a putative class, alleging that CCL
violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Plaintiff
has filed a motion for class certification pursuant to Federal Rule of Civil Procedure
23(b)(3) [94]. For the reasons provided herein, the motion is denied.
I. Procedural History
Three months before filing this case, Plaintiff’s counsel had filed a similar case
in the Eastern District of New York, Jackson v. Caribbean Cruise Line, Inc., where
another plaintiff filed a class action against CCL and its Canadian advertising
agency, Adsource Marketing, Ltd. (“Adsource”), for violating the TCPA. Case No. 14cv-02485-ADS-AKT (E.D.N.Y.), ECF No. 1. In Jackson, as in this case, the plaintiff
alleged that CCL, through Adsource, sent unsolicited text messages to hundreds of

thousands of cell phone numbers. The Court stayed this case during the pendency of
the Jackson litigation, and the parties, represented by the same counsel in both cases,
agreed that discovery in Jackson would also apply here.
Discovery in Jackson took over two years.

Having failed to answer the

complaint, Adsource defaulted. Id., ECF No. 89. Discovery of evidence from Adsource
and its president, Benjamin Langille, who was then a Canadian resident, was pivotal
to the plaintiff’s claims against CCL in Jackson. Nonetheless, plaintiff’s counsel
made no formal attempt to obtain discovery from Adsource or Langille, despite the
Jackson court’s warning that foregoing such discovery could have fatal consequences.
Plaintiff’s counsel chose, instead, to rely on opposing counsel to gather information
from Adsource.
Based upon this arrangement, CCL produced two lists obtained from Adsource
containing information about various individuals, who (at least according to CCL and
Adsource) had opted in and consented to receive text messages regarding CCL.1 CCL
also provided a privilege log that listed a curious document described as “Ben Langille
Declaration,” which CCL withheld based upon the attorney work product doctrine;
Plaintiff’s counsel did not challenge this designation.

Two days before the close of

discovery in Jackson, the plaintiff moved to voluntarily dismiss the case with
prejudice, and the court granted the motion. Def.’s Resp. Pl.’s Mot. Exclude Langille
Decl., Ex. P, Pl.’s Mot. Dismiss Pursuant to Rule 41, ECF No. 118-16.

1

For reasons too obvious to explain, CCL calls these lists “opt-in lists,” while Plaintiff
refers to them as “text lists.” The Court will refer to them as the “Lead List” and “Second
Lead List,” respectively.

2

The resolution of Jackson prompted the restart of this case, and this Court
permitted the parties to pursue additional discovery. Minute Entry of 2/22/17, ECF
No. 60. At that time, Plaintiff’s counsel indicated that he would not seek discovery
from Langille or Adsource. Status Report at 4, ECF No. 61. Additionally, Plaintiff
neither sought the production of the Langille declaration nor challenged its
designation as attorney work product.

Nor did Plaintiff ever seek leave to add

Langille or Adsource as defendants in this case.
Plaintiff subsequently moved for class certification. In its opposition to the
motion, CCL submitted Langille’s declaration.

Plaintiff moved to exclude the

declaration under Federal Rule of Civil Procedure (“Rule”) 37(c)(1), and the Court
denied the motion on September 18, 2018, permitting CCL to rely upon Langille’s
declaration and finding that Plaintiff would not suffer any undue prejudice as a
result. See Pl.’s Mot. Exclude, ECF No. 113; 9/18/18 Order, ECF No. 143.
II. Factual Background
CCL is a marketer of cruise vacation packages, which include cruises, airline
travel, hotel stays, and car rentals. Compl. ¶ 11, ECF No. 1; Pl.’s Ex. 1, Poole Dep.
at 97, ECF No. 86-2. According to Jennifer Poole, CCL’s Director of Marketing, CCL
hired Langille and Adsource to generate sales leads of persons interested in
purchasing vacation packages. Def.’s Ex. 3, Poole Decl. (“Poole Decl.”) ¶¶ 5, 7, 9, ECF
No. 105-3; Def.’s Ex. 4, Poole Dep. (“Poole Dep.”) at 96:7–15, ECF No. 105-4.
To this end, Adsource’s marketing program for CCL consisted of placing
banner and pop-up advertisements on certain websites offering vacation deals. Poole
3

Decl. ¶ 9a. If a person clicked on the advertisement, he or she would be directed to
Adsource’s website. Id. ¶ 9b; see Pl.’s Ex. 2 (showing Adsource’s landing page), ECF
No. 94-3. After the person was directed to Adsource’s website, the person had the
option of submitting his or her phone number, which served as consent to receive a
subsequent telephone call or text message about the offer. Poole Decl. ¶ 9b. In doing
so, the person was required to check a box next to the following statement: “By
agreeing I consent to be called and/or texted by or on behalf of Caribbean Cruise Line
via autodialer or prerecorded voice at the number above . . . . My consent does not
require purchase. Standard cellular rates will apply.” Pl.’s Ex. 6, Pl.’s Dep. Ex. 4,
ECF No. 86-7.
After the person provided a phone number, Adsource’s toll-free number would
appear on the screen.

Poole Decl. ¶ 9c.

When the person called Adsource, a

representative would explain the vacation offer, and, if the caller wished to hear
additional information, Adsource would transfer the call to a CCL representative. Id.
¶ 9d.
Plaintiff disputes that CCL’s marketing program worked in this way.

In

support, Plaintiff asserts that he never visited Adsource’s website, provided his phone
number, or consented to receive text messages. Nonetheless, according to Plaintiff,
on July 28, 2014, he received a text message on his cell phone stating, “You’ve been
sent a pair of zero cost tickets to the Bahamas! Call 813.5151805.” Compl., Ex. A,
ECF No. 1; Pl.’s Ex. 6, Gordon Dep. (“Gordon Dep.”) at 153:14–21, 190:6–8, ECF No.

4

86-7. Moreover, Plaintiff claims that hundreds of thousands of other consumers also
received similar unsolicited text messages regarding CCL.
As part of his motion, Plaintiff has presented evidence that, throughout CCL’s
marketing relationship with Adsource, CCL was aware that people had complained
about receiving unsolicited text messages. See, e.g., 3/3/14 Email from J. Poole to B.
Langille, CCL.022051(JAX); 5/13/14 Email from J. Poole to B. Langille,
CCL.022185(JAX); 5/21/14 Email from J. Poole to B. Langille, CCL.022185(JAX);
10/21/14 Email from J. Poole to B. Langille, CCL.022068(JAX). Some, like Plaintiff,
have filed lawsuits. See, e.g., Jackson v. Caribbean Cruise Line, Inc., No. 2:14-cv2485 (E.D.N.Y.) (filed Apr. 18, 2014); Iosello v. Caribbean Cruise Line, Inc., No. 14 C
6118 (N.D. Ill.) (filed Aug. 8, 2014); Izsak v. Caribbean Cruise Line, Inc., No. 14-cv62231-BB (S.D. Fla.) (filed Sept. 29, 2014); Guiley v. Caribbean Cruise Line Inc., No.
2014-CVI-1034 (Canton Ohio Mun. Ct.) (filed Feb. 20, 2014).
As a result, CCL has repeatedly requested that Langille provide CCL with a
lists of consumers, who had consented to receive the text messages. Pl.’s Ex 2, 8/1/13
Email from J. Verillo to B. Langille, CCL.022069(JAX), ECF No. 94-2; id., 3/1/14
Email from J. Poole to B. Langille, CCL.022052(JAX); id., 3/26/14 Email from J. Poole
to B. Langille, CCL.022167(JAX). During the many months that CCL waited for
Langille to provide the lists, CCL and Adsource received hundreds of calls daily in
response to the marketing program. See id., 11/15/13 Email from J. Poole to B.
Langille, CCL.022061(JAX); see also Pl.’s Ex. 15, CCL Call-Back List (showing
roughly 190,000 calls to CCL between February 1, 2014, and February 23, 2015); cf.
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ECF No. 94-2; Pl.’s Ex. 7, Lead List (showing 171,000 calls to Adsource from May 29,
2014, to February 9, 2015), ECF No. 94-2; Pl.’s Reply Ex. 1, Second Lead List (showing
136,000 calls to Adsource from November 12, 2013, to April 30, 2014), ECF No. 1141.
In the end, Adsource produced two “Lead Lists” of people who had provided
their contact information and had indicated their consent to receive text messages.
See Pl.’s Ex. 7, Lead List (listing phone calls to Adsource from May 29, 2014, to
February 9, 2015); Pl.’s Reply Ex. 1, Second Lead List, ECF No. 114-1 (listing phone
calls to Adsource from November 12, 2013, to April 30, 2014); see also Def.’s Ex. 5,
Langille Decl. ¶¶ 14–15, ECF No. 105-5. The information on the Lead Lists includes:
(1) Adsource’s identification number for each person, (2) the person’s first and last
name, (3) the phone number the person had provided on Adsource’s website, (4) the
URL of the Adsource website that the person had accessed, (5) the person’s IP
address, and (6) the date and time the person had called Adsource. It is unknown
whether a person identified on the list contacted Adsource after obtaining the tollfree number from Adsource’s website or in response to a voicemail message or text
message. See Def.’s Ex. 5, Langille Decl. ¶¶ 6–7, 10–11.
Plaintiff credits some, but not all, of the information on the Lead Lists. To the
extent that the Lead Lists contain an individual’s phone number, Plaintiff believes
that the phone number does accurately represent a person, who had received a text
message from Adsource. To support this contention, Plaintiff states that his phone
number appears on the first Lead List and that he had received a text message.
6

Gordon Dep. at 153:14–21, 190:6–8; Lead List, Lead 744436. Plaintiff also points to
two plaintiffs in other cases, whose phone numbers appear on the Second Lead List
and allegedly received CCL text messages. See Pl.’s Reply at 3–7.
Plaintiff also agrees with the veracity of the dates and times that appear on
the Lead Lists that purport to show when a person called Adsource’s toll-free number.
He bases this assumption on the fact that the date and time associated with his phone
number match his recollection of events. Lead List, Lead 744436; Gordon Dep. at
123:18–24, 154:5–155:9.
But Plaintiff argues that the names that appear on the Lead List are
completely manufactured. For example, the Lead List records the person associated
with Plaintiff’s phone number as “Stephanie Byrd.” Pl.’s Ex. 9, Gordon Aff. ¶¶ 4–6.
Plaintiff attests that he does not know anyone by that name. Id. In addition,
Plaintiff’s counsel reviewed 50 phone numbers from the Lead List and, using public
record searches, compared them to the subscribers who had those numbers at various
points in time (although not necessarily during the time period recorded on the Lead
Lists). Pl.’s Ex. 10, WL Records. Based on this comparison, counsel concluded that
the subscribers’ names did not match the names on the Lead List. Pl.’s Ex. 11, Chart
Summarizing Mismatch.
Plaintiff also contends that the URL and IP addresses on the Lead Lists are
fictitious for several reasons. First, Plaintiff is absolutely certain that neither he nor
his wife sought information from Adsource, entered his contact information on
Adsource’s website, or consented to receive text messages about a cruise, even though
7

this is what the Lead Lists suggest. Gordon Dep. at 190:6–8. Second, the IP address
listed for Plaintiff’s phone number actually belongs to a La Quinta Inn near Ocala,
Florida, a place where Plaintiff claims he has neither visited nor lived. Pl.’s Ex. 9,
Gordon Aff. ¶¶ 7–9.
Beyond the Lead List, Plaintiff also asserts that Adsource’s recordkeeping is
generally unreliable. For example, according to Plaintiff, Brian Jackson, the plaintiff
in the Jackson case,2 alleged that he had received a text message during the same
marketing campaign, but his name does not appear on the Lead List. See Pl.’s Ex.
12, Opt-in Record; 2d Am. Compl. ¶ 10, Jackson v. Caribbean Cruise Line, Inc., No.
2:14-cv-2485 (E.D.N.Y.), ECF No. 55. According to other Adsource records, a person
associated with Jackson’s number was recorded as having consented to receiving text
messages. See Pl.’s Ex. 12, Opt-in Record. But the recorded name of the person does
not match his. See id.
Finally, for the purpose of establishing the scope and breadth of CCL’s
marketing program, Plaintiff points to a spreadsheet that CCL purports to be a list
of 193,000 incoming calls received by CCL representatives from February 1, 2014, to
April 1, 2015 (“Call-Back List”). Pl.’s Ex. 15, CCL Call-Back List, ECF No. 86-16.
The list includes the date and time of the call, the phone number, the duration of the
call in seconds, and the disposition of the call. See id. Some of the notations indicate
that a sale had been completed or, oddly, that an answering machine had called CCL.

2

Because Jackson dismissed his TCPA claims with prejudice in that case, he is not a
member of the proposed class here.

8

See id. The majority of notations indicate that the person either hung up on the CCL
representative or that the phone call had been transferred to CCL from Adsource.
See id. The Call-Back List does not identify names and does not indicate whether the
person called in response to the toll-free number displayed on Adsource’s website or
after receiving a voicemail message or text message. See id.
Plaintiff contends that text messages sent to the persons on Adsource’s Lead
Lists and CCL’s Call-Back List violated the TCPA. And so, Plaintiff has moved for
class certification of his TCPA claim pursuant to Rule 23(b)(3), seeking to certify a
class defined as follows:
All individuals in the United States that: (1) had a text message sent to
their cellular telephone number by, on behalf of, or for the benefit of
CCL; (2) using an automated telephone dialing system; (3) between
February 1, 2014 and April 1, 2015 (the “Class Period”); (4) whose
cellular number appears in CCL’s records (the “Class”).
Pl.’s Mot. at 2, ECF No. 124.
With the proposed class definition in mind, the Court now turns to the merits
of Plaintiff’s motion for class certification.
II. Legal Standard
Class certification is governed by Rule 23.

As an initial matter,

ascertainability of the class is an implicit prerequisite for class certification under
Rule 23. Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). A class is
ascertainable if it is “defined clearly and based on objective criteria.”

Id.

In

particular, “class definitions generally need to identify a particular group, harmed
during a particular time frame, in a particular location, in a particular way.” Id. at
9

660. But, at the class certification stage, ascertainability does not require that there
is a “reliable and administratively feasible” way to identify the members of the
putative class. Id. at 657–58. The Seventh Circuit has explicitly rejected the practice
of other courts to move “beyond examining the adequacy of the class definition itself
to examine the potential difficulty of identifying particular members of the class and
evaluating the validity of claims they might eventually submit.” Id. at 659.
In addition, under Rule 23(a), class certification is permitted only when:
“(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 Messner v. Northshore Univ. Healthsystem, 669 F.3d
802, 811 (7th Cir. 2012). “[C]ertification is proper only if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”
Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011) (internal quotation
marks omitted).
Furthermore, proponents seeking class certification under Rule 23(b)(3) must
show: “(1) that the questions of law or fact common to the members of the proposed
class predominate over questions affecting only individual class members; and
(2) that a class action is superior to other available methods of resolving the
controversy.” Messner, 669 F.3d at 811 (citing Siegel v. Shell Oil Co., 612 F.3d 932,
935 (7th Cir. 2010)).
10

It is important to note that Rule 23 “does not set forth a mere pleading
standard.” Wal–Mart, 564 U.S. at 350. Rather, “[p]laintiffs bear the burden of
showing that a proposed class satisfies the Rule 23 requirements.” Messner, 669 F.3d
at 811. As such, when reviewing a motion for class certification, a court “may not
simply assume the truth of the matters as asserted by the plaintiff,” but instead must
receive evidence and resolve factual disputes as necessary to decide whether
certification is appropriate. Id. (citing Szabo v. Bridgeport Mach., Inc., 249 F.3d 672,
676 (7th Cir. 2001)).
Although “the court should not turn the class certification proceedings into a
dress rehearsal for the trial on the merits,” Messner, 669 F.3d at 811, considerations
bearing on class certification often overlap with issues underlying the merits of the
plaintiffs’ claims. See Wal–Mart, 564 U.S. at 351; Retired Chi. Police Ass’n v. City of
Chi., 7 F.3d 584, 599 (7th Cir. 1993). A court must accordingly “make whatever
factual and legal inquiries are necessary to ensure that requirements for class
certification are satisfied before deciding whether a class should be certified, even if
those considerations overlap the merits of the case.” Am. Honda Motor Co. v. Allen,
600 F.3d 813, 815 (7th Cir. 2010) (citing Szabo, 249 F.3d at 676).
III. Analysis
Plaintiff has moved for class certification of his TCPA claim pursuant to Rule
23(a) and 23(b)(3), arguing that the proposed class meets the requirements of
numerosity, commonality, typicality, and adequacy, as well as the requirements of
predominance and superiority under Rule 23(b)(3). In response, CCL argues that the
11

class as defined is not reasonably ascertainable; that Plaintiff cannot establish
numerosity,

typicality,

commonality,

or

adequacy;

that

individual

issues

predominate; and that class litigation is not a superior method of resolving the
controversy.
A.

Ascertainability
CCL raises three arguments to challenge the ascertainability of Plaintiff’s

proposed class. First, CCL suggests that the class definition is improper because it
includes all people who received text messages via an automated telephone dialing
system, rather than only those who received such text messages without prior express
consent. See Def.’s Resp. Opp’n Pl.’s Mot. Class Certification (“Def.’s Resp.”) at 11–
12, ECF No. 105. But this is not fatal to the class. Although a putative class member
must have received a text message without prior express consent in order to recover
under the TCPA, see 47 U.S.C. § 227(b)(1)(A)(iii), “there is no requirement in Rule 23
that Plaintiff’s class must be defined in terms of the statute allegedly violated.”
Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008 WL 2224892, at *2 (N.D. Ill. May
27, 2008).
What is more, including the limitation “without prior express consent” would
create an impermissible fail-safe class.

A fail-safe class is one defined “so that

whether a person qualifies as a member depends on whether the person has a valid
claim. Such a class definition is improper because a class member either wins or, by
virtue of losing, is defined out of the class and is therefore not bound by the judgment.”
Messner, 669 F.3d at 825. Defining the class to include persons who received a text
12

message without providing prior express consent means that only those putative class
members with meritorious claims would be members of the class. See, e.g., Am.’s
Health & Res. Ctr., Ltd. v. Promologics, Inc., No. 16 C 9281, 2018 WL 3474444, at *4
(N.D. Ill. July 19, 2018) (“If the instant class were defined by a legal parameter such
as consent of the recipient class member, the result would be an impermissible ‘failsafe’ class . . . . ”); G.M. Sign Inc. v. Stealth Sec. Sys., Inc., No. 14 C 09249, 2017 WL
3581160, at *3 (N.D. Ill. Aug. 18, 2017) (“[The] class definition does constitute a failsafe class . . . only those to whom Stealth sent faxes without consent—that is, only
those to whom Stealth would be liable—would be members of the class.”); Mauer v.
Am. Intercont’l Univ., Inc., No. 16 C 1473, 2016 WL 4698665, at *3 (N.D. Ill. Sept. 8,
2016) (holding that TCPA class definition requiring lack of express consent was an
improper fail-safe class).
Second, CCL contends that the class time period—February 1, 2014 to April 1,
2015—is overbroad because CCL ceased all marketing operations on December 28,
2014. Def.’s Resp. at 11–12. But CCL’s Call-Back List shows that its representatives
received hundreds of calls during the week leading up to and including April 1, 2015.
See, e.g., Pl.’s Ex. 15, Call-Back List. Therefore, the Court finds that the record
sufficiently supports the proposed time period.
Third, CCL argues that the class definition is not premised on objective
criteria.

Specifically, as CCL sees it, Plaintiff cannot articulate any means of

determining: (1) if Adsource sent the text messages; (2) to whom the text messages
were sent; (3) the identity of the cell phone subscribers; (4) whether the persons
13

consented to receive the text messages; (5) if the persons received the text messages
and, if so, how many each received; (6) if the persons suffered concrete injury; and (7)
if the text messages were sent on behalf of CCL. Def.’s Resp. at 12.
But such an extensive, merits-based inquiry is not necessary to determine
whether an individual falls within the scope of the class, which is limited to those
persons (1) who received text messages sent on CCL’s behalf between certain
specified dates, and (2) whose numbers appear on the Lead Lists or the Call-Back
List. These are straightforward criteria that can be readily applied. As the Seventh
Circuit stated in Mullins, the ascertainability inquiry goes to “the adequacy of the
class definition itself,” not to “whether, given an adequate class definition, it would
be difficult to identify particular members of the class.” 795 F.3d at 659. Because the
Court finds the class definition is based on objective criteria, Plaintiff has established
that the class is ascertainable.
B.

Rule 23(a)(1): Numerosity
Turning to the explicit requirements of Rule 23, subsection (a) requires that

members of a certified class be “so numerous that joinder of all members is
impracticable.”

Fed. R. Civ. P. 23(a)(1).

Numerosity is satisfied where “it’s

reasonable to believe [the class is] large enough to make joinder impracticable and
thus justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co. v.
Wagner Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014). Generally speaking, classes
of forty or more members are sufficiently numerous to warrant certification. See, e.g.,

14

Pruitt v. City of Chi., 472 F.3d 925, 926–27 (7th Cir. 2007); Oplchenski v. Parfums
Givenchy, Inc., 254 F.R.D. 489, 495 (N.D. Ill. 2008).
According to CCL, the proposition that anyone other than Plaintiff received the
text messages at issue is sheer speculation. Plaintiff, however, points to the plaintiffs
in Izsak and Guiley, whose numbers appear on the Second Lead List and who received
unsolicited CCL text messages. See Izsak, No. 14-cv-62231-BB (S.D. Fla.); Guiley,
No. 2014-CVI-1034 (Canton Ohio Mun. Ct.). Moreover, on November 5, 2014, Poole
stated in an email to Langille that CCL was being inundated with complaints from
people who had received unsolicited text messages. Pl.’s Ex. 2, Email of 11/5/2014
from J. Poole to B. Langille, CCL022064(JAX) (stating that CCL representatives are
saying “all their [A]dsource callers” are complaining about unsolicited text messages
and that they are “spending the whole day calming down irate consumers”). Indeed,
of the 643 calls transferred to CCL from Adsource on November 5 alone, at least ten
percent were complaints from text message recipients. See Pl.’s Ex. 15, Call-Back
List. This is sufficient to show that at least 40 people received an unsolicited text
message. See G.M. Sign, 2017 WL 3581160 at *2 (holding that numerosity was
satisfied based on list of incoming complaints requesting not to be contacted).
Plaintiff has satisfied the numerosity requirement.
C.

Rule 23(a)(2): Commonality
For class certification to be proper, the asserted claims also must present

common questions of law or fact. Fed. R. Civ. P. 23(a)(2). A question is common to
the class if it generates a common answer, such that determination of the question
15

will “resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal-Mart, 564 U.S. at 350. The common questions “need not address every
aspect of the plaintiffs’ claims,” but they “must ‘drive the resolution of the litigation.’”
Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 553 (7th Cir. 2016) (quoting Dukes, 564
U.S. at 350). For purposes of Rule 23(a)(2), “[e]ven a single [common] question” will
suffice. Dukes, 564 U.S. at 359.
Here, the claims of all class members hinge on the resolution of at least one
common question: whether Adsource used an automatic telephone dialing system
(“ATDS”) to send text messages on CCL’s behalf. The resolution of this question will
resolve an issue central to the validity of each of the claims.

See 47 U.S.C.

§ 227(b)(1)(A)(ii) (prohibiting the use of any ATDS to make any call to a cellular
telephone under certain conditions); see, e.g., Lanteri v. Credit Protection Ass’n L.P.,
No. 1:13-CV-1501-WTL-MJD, 2018 WL 4625657, at *3 (S.D. Ind. Sept. 26, 2018)
(finding the issue of whether an ATDS was used to send text messages satisfied the
commonality requirement). Furthermore, Plaintiff has presented evidence that this
question can be answered on a class-wide basis. Poole admits that, as part of CCL’s
marketing campaign, Adsource used Twilio or a similar communication platform that
utilized a computer program to send text messages. Pl.’s Ex. 1, Poole Dep. at 42:3–
15, ECF No. 86-2; Poole Decl. ¶ 10.

Accordingly, Plaintiff has satisfied the

commonality requirement.

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D.

Rule 23(a)(3) Typicality
Typicality under Rule 23(a) requires that the named plaintiffs’ claims “arise[]

from the same event or practice or course of conduct that gives rise to the claims of
other class members” and “are based on the same legal theory.” Keele v. Wexler, 149
F.3d 589, 595 (7th Cir. 1998). The typicality requirement is thus satisfied when “the
named representatives’ claims have the same essential characteristics as the claims
of the class at large.” Retired Chi. Police Ass’n, 7 F.3d at 597.
CCL first argues that Plaintiff is not typical of the class for the same reasons
it contends he cannot establish commonality or numerosity.

Def.’s Resp. at 20.

Because the Court has already dispatched those arguments, it need not rehash them
here.
In addition, CCL argues that defenses unique to Plaintiff render him atypical
of the class, citing cases from the Ninth Circuit and Central District of California.
See id. at 21 (citing Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992);
Ngheim v. Dicks Sporting Goods, Inc., 318 F.R.D. 375, 381–83 (C.D. Cal. 2016)). But
under established Seventh Circuit authority, “[t]ypicality under Rule 23(a)(3) should
be determined with reference to the [defendant’s] actions, not with respect to
particularized defenses it might have against certain class members.” Wagner v.
NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996); see also CE Design Ltd. v. King
Architectural Metals, Inc., 637 F.3d 721, 724–25 (7th Cir. 2011) (quoting Wagner, 95
F.3d at 534). Because CCL’s purported conduct with respect to the class—its decision

17

to allow Adsource to send unsolicited text messages on its behalf—is identical
throughout the class, the typicality requirement is satisfied.
E.

Rule 23(a)(4) Adequacy
The adequacy requirement under Rule 23(a)(4) comprises two parts: “the

adequacy of the named plaintiff's counsel, and the adequacy of representation
provided in protecting the different, separate, and distinct interest of the class
members.”

Retired Chi. Police Ass’n, 7 F.3d at 598.

“A class is not fairly and

adequately represented if class members have antagonistic or conflicting claims.”
Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
“[A] majority of courts . . . have refused to permit class attorneys, their
relatives, or business associates from acting as the class representative.” Susman v.
Lincoln Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977).
The most frequently cited policy justification for this line of
cases arises from the possible conflict of interest resulting
from the relationship of the putative class representative
and the putative class attorney. Since possible recovery of
the class representative is far exceeded by potential
attorneys' fees, courts fear that a class representative who
is closely associated with the class attorney would allow
settlement on terms less favorable to the interests of
absent class members.
Id. at 91 (citations omitted).

Whether a close relationship renders a class

representative inadequate is a fact-intensive inquiry to be determined on a case-bycase basis. Id. at 90.
CCL first argues that Plaintiff is not an adequate representative because he is
a TCPA class-action attorney. But Plaintiff states that he has never prosecuted a
18

TCPA claim as an attorney. Compare Def.’s Resp. at 21, with Pl.’s Reply at 13.
Moreover, Plaintiff argues that he represents the class solely in his role as a consumer
who received an unsolicited text message. See Pl.’s Reply at 13. The Court holds that
Plaintiff’s occupation as a class-action attorney, in and of itself, does not call into
question his adequacy as a class representative.
CCL also contends that Plaintiff’s close ties with class counsel render him an
inadequate representative. This argument merits greater scrutiny. “Strict oversight
is necessitated since due process requires that absent class members be adequately
represented in order to be bound by a court’s judgment.” Susman, 561 F.2d at 90; see
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). “Class representatives
need to be capable of saying no if they believe counsel are failing to act in the best
interests of the class.” In re Sw. Airlines Voucher Litig., 799 F.3d 701, 714 (7th Cir.
2015). An actual conflict of interest is not necessary. Id. at 715.

Rather, it is

sufficient to show that “the mere possibility of a conflict of interest . . . support[s] a
finding that a fiduciary will not adequately represent the interest of others.” Id.
In Susman, the class representative was an attorney, who had collaborated, as
well as rented and shared an office suite, with an attorney who represented the class.
The district court rejected the class representative due to the specter of a conflict of
interest, and the Seventh Circuit affirmed. Id. at 88. Likewise, in London v. WalMart Stores, Inc., the Eleventh Circuit held that a long-standing friendship and
former business relationship between the proposed class representative and class
counsel created “a present conflict of interest—an incentive for [the class
19

representative] to place the interests of [class counsel] above those of the class.” 340
F.3d 1246, 1255 (11th Cir. 2003) (emphasis in original). In so doing, the court cited
with approval the Seventh Circuit’s holding in In re Sw. Airlines Voucher Litig., 799
F.3d at 715.
Here, Plaintiff and putative class counsel, Katrina Carroll of Lite DePalma
Greenberg LLC (“LDG”), have jointly represented class action plaintiffs in five
different matters, three of which are still pending.3 Furthermore, they also share an
office suite, receptionist, and fax machine. Pl.’s Disclosure Stmt. ¶ 5, ECF No. 71;
Def.’s Ex. 1, Pl.’s Dep. at 18:2–21, 24:6–10, 55:20–24, ECF No. 105-1; see Susman, 561
F.2d at 93. In addition, LDG’s office space is owned by a partnership involving
Plaintiff’s cousin, to which LDG pays rent. Def.’s Ex. 1, Pl.’s Dep. at 22:12–16, 55:9–
15. And Plaintiff has even sought employment with LDG. Id. at 19:20–20:5. What
is more, Plaintiff lives close to Carroll, their families socialize together, and their
daughters attend the same school. Id. at 52:13–16, 53:11–21. Furthermore, Plaintiff
serves as co-class counsel with Kyle Shamberg, yet another attorney from LDG, in
cases currently pending before the Court, and on one occasion, Shamberg referred a
case to Plaintiff’s law firm for which he was paid a referral fee. Pl.’s Reply Br. at 16
n.13, ECF No. 114.
Based upon this record, the Court finds that Plaintiff’s significant business ties
to Carroll, Shamberg, and LDG, as well as his close personal ties to Carroll, cast

3

Plaintiff was also a class representative, with LDG acting as putative class counsel,
in Gordon v. American Resorts International Ltd., No. 14 C 6944 (N.D. Ill.), but that case
settled without a substantive determination as to class certification.

20

significant doubt upon his ability to put the interests of absent class members above
that of class counsel. Accordingly, the Court finds that Plaintiff has failed to satisfy
Rule 23(a)(4)’s adequacy requirement.
F.

Rule 23(b)(3): Predominance
Rule 23(b)(3) also poses a barrier to class certification here. The rule requires

that common questions “predominate over any questions affecting only individual
members.” Fed. R. Civ. P. 23(b)(3); see Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
624 (1997) (stating that “the predominance criterion is far more demanding” than
“Rule 23(a)’s commonality requirement”). To establish predominance, a plaintiff
must be able to prove his case with “evidence that is common to the class rather than
individual to its members.” Messner, 669 F.3d at 811 (internal quotation marks
omitted).

If a determination of whether plaintiffs suffered harm based on the

defendant’s

conduct

requires

resolving

individualized

questions

of

fact,

predominance is not satisfied. Siegel, 612 F.3d at 936.
An “inquiry into the predomination analysis must take two steps.” Simer v.
Rios, 661 F.2d 655, 672 (7th Cir. 1981). First, the court focuses “on the substantive
elements of plaintiffs’ cause of action and inquire[s] into the proof necessary for the
various elements.” Id.; see Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,
809 (2011).

The court’s analysis under the first step also considers the proof

necessary to adjudicate defenses to the claim. Channell v. Citicorp Nat’l Servs. Inc.,
89 F.3d 379, 386 (7th Cir. 1996). “Second, after examining the proof necessary [the
court] must inquire into the form that trial on these issues would take.” Simer, 661
21

F.2d at 672. During the latter step, “it also becomes necessary to examine the
procedural devices and alternatives available in trying class actions.” Id.
First, as to Plaintiff’s claim, to establish a TCPA violation, Plaintiff must prove
that Adsource sent on CCL’s behalf text messages to class members using an ATDS.
See 47 U.S.C. § 227(b)(1)(A). Plaintiff’s proof that Adsource used an ATDS to send
text messages on behalf of CCL is evidence common to the class. See, e.g., Pl.’s Ex. 1,
Poole Dep. at 42:3–15, ECF No. 86-2; Poole Decl. ¶ 10 (stating that Adsource used
communication platforms employing a computer program to send text messages).
For its part, CCL argues that Plaintiff has failed to adduce class-wide evidence
establishing the identity of those who actually received text messages. In support,
CCL notes that (1) the Lead Lists do not indicate whether the enumerated individuals
actually received any text messages, and (2) the Call-Back List simply records
incoming calls without any information as to whether a call was received in response
to a text message or some other advertisement. See Call-Back List; Poole Decl. ¶ 9c.
But “arguments about whether someone belongs in the class[] do not speak to
whether common questions predominate among class members.”

Birchmeier, 302

F.R.D. at 254. So this objection is not well-taken.
Turning to CCL’s potential defenses, to prevail on a consent defense, CCL will
be required to show that Adsource had obtained prior express consent from an
individual class member before sending a CCL text message to him or her. See 47
U.S.C. § 227(b)(1)(A); Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2017) (“Express
consent is an affirmative defense on which the defendant bears the burden of proof.”).
22

In TCPA cases, “[c]ourts determine whether issues of individualized consent defeat .
. . predominance . . . on a case-by-case basis after evaluating the specific evidence
available to prove consent.” Physicians Healthsource, Inc., v. A-S Medication Sols.,
LLC, 318 F.R.D. 712, 725 (N.D. Ill. 2016). “[W]hen the defendant provides specific
evidence showing that a significant percentage of the putative class consented to
receiving calls, issues of individualized consent predominate.”

Legg v. PTZ Ins.

Agency, Ltd., 321 F.R.D. 572, 577 (N.D. Ill. 2017). If, however, the defendant “fail[s]
to set forth this specific evidence and instead only make[s] vague assertions about
consent, then individualized issues regarding consent will not predominate over
common questions of law or fact so as to prevent class certification.” Jamison v. First
Credit Servs., Inc., 290 F.R.D. 92, 107 (N.D. Ill. 2013).
Here, CCL provides specific evidence in the form of Langille’s declaration,
attesting that Adsource sent text messages only to those who entered their names
and phone numbers on Adsource’s landing page and checked the box indicating their
consent to receive text messages via an auto-dialer. Def.’s Ex. 5, Langille Decl. ¶¶ 8,
10, 11; see also id., Ex. A, Adsource Landing Page, ECF No. 105-5. CCL also points
to Adsource’s Lead List and Second Lead List that together identify over 300,000
individuals, as evidence of class members who provided consent to receive text
messages, along with their names, phone numbers, and IP addresses.
In response, Plaintiff identifies certain individuals, who appear to contradict
CCL’s characterization of this evidence. For instance, Plaintiff himself testified that
his cell phone number appears on the Lead List, even though he had not provided
23

prior express consent. Gordon Dep. at 123:18–24, 154:5–155:9, 190:6–8; Lead List,
Lead 744436. Plaintiff also points to two other individuals, whose phone numbers
appear on the Second Lead List, but attest that they also had not provided consent to
receive the text messages. See Pl.’s Reply, Ex. F, Izsak Compl. ¶ 31; id., Ex. C, Guiley
Compl. ¶ 15. Furthermore, Plaintiff provides evidence that at least fifty individuals
named in the Lead List in 2014 and 2015 were not associated with their
corresponding phone numbers as of 2017. Pl.’s Ex. 10, WL Records; Pl.’s Ex. 11, Chart
Summarizing Mismatch.4 But Plaintiff’s efforts to attack the probative value of the
Lead Lists with data from individual putative class members only proves CCL’s point.
Given the Lead Lists and Langille’s declaration, individualized factual inquiries will
be necessary to determine whether the individuals on the Lead Lists did, in fact,
consent, and those issues will predominate the litigation.5 And Plaintiff has not
presented a viable approach based on common proof to establish the lack of consent
with respect to the class. Accordingly, a multitude of mini-trials will be unavoidable.

4

Many of the 2017 public records show that persons with the Lead List phone number
were first reported as having the numbers after February 2015, which creates a reasonable
inference that they were not associated with the phone number on the date recorded on the
Lead List. Compare Pl.’s Ex. 7, Lead List (showing 171,000 calls to Adsource between May
29, 2014, and February 9, 2015), with Pl.’s Ex. 10, WL Records.
5

In the alternative, Plaintiff argues that, even if a person had consented to receive CCL
text messages, the consent language itself is deficient as a matter of law, because it does not
specifically reference consent to receive advertisements or telemarketing messages. See Pl.’s
Mem. Supp. Mot. Class Certification, at 22–23. The Court disagrees. The consent language
states: “I consent to be called and/or texted by or on behalf of Caribbean Cruise Line via
autodialer or prerecorded voice at the number above . . . . My consent does not require
purchase. Standard cellular rates will apply.” Pl.’s Ex. 6, Pl.’s Dep. Ex. 4. Because consent
to receive calls and texts “via autodialer or prerecorded voice” unmistakably references
consent to receive advertisements or telemarketing messages, this language is not deficient
as a matter of law.

24

See, e.g., Espejo v. Santander Consumer USA, Inc., No. 11 C 8987, 2016 WL 6037625,
at *10 (N.D. Ill. Oct. 14, 2016) (finding predominance was not satisfied where
individualized mini-trials regarding consent were required); G.M. Sign, 2017 WL
3581160, at *8–9 (same). For these reasons, the Court finds that Plaintiff has not
satisfied Rule 23(b)(3)’s predominance requirement.
F. Rule 23(b)(3): Superiority
Rule 23(b)(3) permits class certification only in cases where “a class action is
superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). “Commonly referred to as ‘manageability,’ this
consideration encompasses the whole range of practical problems that may render
the class action format inappropriate for a particular suit.” Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 164 (1974). To evaluate superiority, a court weighs: (1) “the
interest of members of the class in individually controlling the prosecution or defense
of separate actions;” (2) “the extent and nature of any litigation concerning the
controversy already commenced by . . . members of the class;” (3) “the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;”
and (4) “the difficulties likely to be encountered in the management of a class action.”
Id. n.3; see Fed. R. Civ. P. 23(b)(3). The Seventh Circuit has recognized that Rule
23(b)(3)’s superiority requirement is closely related to the requirement of
predominance—the more that common questions predominate over other issues in
the case, the more likely it is that a class action is the superior method of adjudication.
See Messner, 669 F.3d at 814 n.5.
25

Here, because TCPA claims involve small recoveries, class members would
have little interest in individually controlling actions in separate venues, as indicated
by the fact that only a handful of other plaintiffs have filed similar actions against
CCL and each of those plaintiffs has brought a class action. 6 That said, due to
individualized factual inquiries required to adjudicate class members’ claims, there
is a high likelihood that maintaining the litigation as a class action would be
unmanageable. The Court has considered alternative procedural devices available in
trying class actions, such as questionnaires and affidavits, but none are up to the task
of providing CCL a meaningful opportunity to test the veracity of each putative class
member as to the issue of consent. As such, the Court finds that the manageability
problems of litigating the claims as a class action outweigh the benefits, and allowing
this case to proceed as a class action would not efficiently or fairly adjudicate the
controversy.

6

Four others filed their own class action lawsuits. See Iosello v. Caribbean Cruise Line,
Inc., No. 14 C 6118 (N.D. Ill.) (settled on Feb. 22, 2017); Jackson v. Caribbean Cruise Line,
Inc., No. 14-cv-02485-ADS-AKT (E.D.N.Y.) (dismissed with prejudice on July 27, 2016); Izsak
v. Caribbean Cruise Line, Inc., No. 14-cv-62231-BB (S.D. Fla.) (stayed on Dec. 3, 2014); Guiley
v. Caribbean Cruise Line Inc., No. 2014-CVI-1034 (Canton Ohio Mun. Ct.) (settled on Mar.
24, 2014).

26

IV. Conclusion
For the reasons stated herein, Plaintiff’s Rule 23 motion for class certification
[94] is denied.
IT IS SO ORDERED.

ENTERED 2/8/19

__________________________________
John Z. Lee
United States District Judge

27