Griffith v. ContextMedia, Inc.
Filing
92
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/11/2018. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Christy Griffith
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) Case No. 16 C 2900
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Plaintiff,
v.
ContextMedia, Inc.
Defendant.
MEMORANDUM OPINION ORDER
In this action, plaintiff alleges on behalf of herself and a
class that defendant violated the Telephone Consumer Protection
Act
(“TCPA”)
by
sending
unwanted
automated
text
messages.
Griffith’s allegations are straightforward. She claims that after
signing up to receive daily automated “Healthy Tips” via text
message and receiving such messages for a period of time, she
attempted to unsubscribe from the service by replying to them with
the word “STOP” and similar messages indicating that she no longer
wished to subscribe to the service. Despite her efforts, the texts
continued for many months. Plaintiff estimates that she received
approximately eighty texts after her first attempt to stop them.
Before
me
are
motion
to
file
definition
plaintiff’s
a
third
consistently
motion
amended
with
the
for
class
complaint
one
certification;
to
amend
proposed
in
her
the
class
her
class
certification
motion;
and
defendant’s
motion
to
strike
the
declaration of Lisa Mullins, an expert on whose opinions plaintiff
relies to support her class certification motion. For the reasons
that follow, the class certification motion and the motion to
amend are granted, and the motion to strike is denied.
Plaintiff’s motion seeks to certify the following class:
Plaintiff and all persons within the United States to
whose cellular telephone number Defendant ContextMedia
Health, LLC sent, between July 28, 2015, and March 31,
2016, a text message, other than an opt-out confirmation
text message, as part of its “Healthy Tips” campaign,
after Defendant’s records or the records of any entity
with whom Defendant contracted to provide text messaging
services, indicate that the telephone number to which
the text messages were sent had previously sent a text
message with the single word “STOP” or the single phrase
“STOP CMH TIPS,” regardless of capitalization.
A
proposed
class
“must
always
meet
the
Rule
23(a)
requirements of numerosity, typicality, commonality, and adequacy
of representation.” Messner v. Northshore University HealthSystem,
669 F.3d 802, 811 (7th Cir. 2012). Because plaintiff seeks to
certify a class under Rule 23(b)(3), she must further establish:
“(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.
Id.
Plaintiff bears the burden of showing that a preponderance of the
evidence supports each element. Id.
2
It is undisputed that the proposed class meets the numerosity
requirement, as defendant’s discovery indicates that it contains
more than 2,200 individuals. Defendant does not dispute that the
proposed
class
meaningfully
evidentiary
is
contest
sufficiently
commonality,
inadequacies
without
numerous.
as
it
Nor
does
focuses
tethering
them
defendant
on
to
perceived
a
reasoned
discussion of what commonality requires. The central analytical
issue is whether common questions bearing on defendants’ liability
yield answers that are common to the class. See Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011) (commonality requires that
class members’ claims “depend upon a common contention ... of such
a nature that it is capable of classwide resolution—which means
that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one
stroke.”). Plaintiff identifies several questions that seem to fit
the bill—including whether sending the message identified in the
class amounts to revocation of consent and whether the equipment
used to send the messages at issue meet the requirements of an
“automatic
that
telephone
plaintiff
dialing
offers
no
system—and
“evidence,
defendant’s
no
proposed
insistence
analytical
framework, no litigation plan” does not persuade me otherwise. As
for the remaining requirements of Rule 23(a), defendant does not
dispute that plaintiff’s claim arises from the same course of
conduct as that giving rise to the class claim, thus satisfying
3
typicality, see De La Fuente v. Stokely-Van Camp, Inc., 713 F.3d
225, 232 (7th Cir. 1983), or that the named plaintiff and class
counsel
are
adequate
representatives.
For
these
reasons,
I
am
satisfied that Rule 23(a)(1) is satisfied.
Defendant’s principal objections to class certification are:
1) that plaintiff’s motion articulates a different class than the
one proposed in her complaint; 2) that the proposed class is not
ascertainable and is fail-safe; and 3) that the proposed class
fails Rule 23(b)’s predominance and superiority requirements. None
of these objections requires extended analysis.
On the issue of class definition, it is not uncommon for
courts to modify the proposed class at the certification stage to
avoid
such
Messner,
problems
669
F.3d
as
802,
over-inclusivity
825
(7th
Cir.
and
fail-safeness.
2012)
(endorsing
See
the
approach); Streeter v. Sheriff of Cook County, 256 F.R.D. 609, 615
(N.D. Ill. 2009) (certifying modified class to avoid ambiguity in
class definition); Hinman v. M and M Rental Center, Inc., 545 F.
Supp. 2d 802, 808 (N.D. Ill. 2008) (certifying modified class). In
this case, the modified definition clarifies the dates of the
class period and narrows the proposed class by confining it to
individuals who received automated “Healthy Tips” text messages
(as opposed to any automated text messages) and who sent one of
two precisely worded messages to defendant in response. I am not
persuaded that defendant is any way prejudiced by allowing these
4
refinements, and the law of this circuit does not mandate denial
of certification on the principle that plaintiff must stick to the
definition proposed in her complaint. Although I am not convinced
that
it
is
necessary
to
amend
the
complaint
to
reflect
the
modified class definition, plaintiffs’ motion for leave to do so
is granted.
On the issue of ascertainability, the law of this circuit is
clear: a class that is “defined clearly and based on objective
criteria” is ascertainable, even if its members may be difficult
to identify. Mullins v. Direct Digital, LLC, 795 F.3d 654, 659
(7th Cir. 2015). The proposed class again fits the bill. The class
definition is neither imprecise nor amorphous, nor does membership
depend on subjective criteria. Defendant points to a litany of
hypotheticals, including that a class member “could have blocked
text messages from Healthy Tips, lost or disposed of her phone,
discontinued her cellular service, or otherwise acted to no longer
receive
the
messages,”
Opp.
at
7,
but
none
of
these
concerns
suggests that the class fails to meet the standard the Seventh
Circuit
has
articulated
for
ascertainability.
Moreover,
even
assuming the analysis requires inquiry into the ease or difficulty
with which class members can reliably be identified, plaintiff
proposes
several
methods
for
doing
so,
including
through
the
services of an experienced class action administration firm with
access
resources
for
identifying
5
class
members
based
on
known
phone numbers and/or enlisting the help of cellular carriers whose
records
can
be
used
to
correlate
cell
phone
numbers
with
the
individuals who used them.1 Lisa Mullins, a principal of the class
action administration firm ILYM, estimates based on her experience
handling similar cases that resources available to her firm will
allow it to identify and locate upwards of eighty-five percent of
class members based on their phone numbers. While it is true that
Ms. Mullins’s declaration might have identified more specifically
the
“databases
and
third-party
sources”
her
firm
uses,
her
representation that ILYM was, in fact, able to identify and locate
87.78% of 76,190 class members based only on their cell phone
numbers in a 2014 case in the Central District of California, see
Mullins Decl. at ¶ 6, is persuasive evidence that her firm could
reliably identify most members of the much smaller class here.2
1
I am mindful that the correlation may be imperfect in some cases,
where the subscriber is different from the actual user. This
strikes me not as problem of ascertainability, however, but rather
as a factor that may be relevant to the predominance inquiry,
though I am not persuaded it is an obstacle to certification in
that connection here.
2
I decline to strike Ms. Mullins’s declaration on the ground
offering that she was not properly disclosed as an expert under
Rule 26(a)(2). Rule 26(a)(2) facially applies only to expert
witnesses a party “may use at trial,” while plaintiff offers Ms.
Mullins’s declaration solely in support of class certification.
While courts commonly require Rule 26(a)(2) disclosure of experts
whose testimony is offered in conjunction with summary judgment,
defendant points to no case requiring disclosure of a classcertification witness, and plaintiff identifies several decisions
holding that Rule 26(a)(2) disclosures are not required in other
contexts. See, e.g., Yakima Valley
Mem’l
Hosp. v. Washington
State Dep’t of Health No. CV 09-3032-EFS, 2012 WL 12951705, at
6
Nor has defendant offered argument or authority suggesting
that
plaintiff’s
proposed
class
is
“fail-safe.”
Indeed,
defendant’s “fail-safe” argument (which lacks meaningful analysis
in any event) appears directed exclusively to the class definition
alleged in the complaint. See Opp. at 6.
This leaves only the issues of predominance and superiority.3
Defendants’ central theory is that because plaintiff’s individual
recovery is potentially significant—as much as $124,000 if she
proves willful violations of the TCPA—it is not appropriate for
class treatment. It is true that “if a class member has a large
enough stake to be able to litigate on his own, the case for
class-action treatment is weakened.” Pastor v. State Farm Mut.
Auto. Ins. Co., 487 F.3d 1042, 1047 (7th Cir. 2007) (quoting Nagel
v. ADM Investor Services, Inc., 217 F.3d 436, 443 (7th Cir. 2000).
But neither
Pastor
nor
Nagel
suggests that class treatment is
inappropriate here. In Pastor, the plaintiff’s individual claim
*2 (E.D. Wash. May 18, 2012) (expert testimony in support of
Daubert motion not subject to Rule 26(a)(2)); Broyles v. Cantor
Fitzgerald & Co., No. 3:10-857-JJB-CBW, 2016 WL 4267955, at *3
(M.D. La. Aug. 11, 2016)(same); Smiley v. Hologic, Inc., No. 16cv-158-WQH-MDD, 2016 WL 5242958, at *1 (S.D. Cal. Sept. 22, 2016)
(Rule 26(a)(2) disclosure not required of expert plaintiff did not
intend to use at trial). Moroever, I am not persuaded that
defendant was prejudiced by plaintiffs’ failure to disclose Ms.
Mullins pursuant to Rule 26(a)(2).
3
Defendant pays lip service to a handful of additional arguments,
including that plaintiff’s claims require “extensive” individual
inquiry, specifically on the issues of consent, standing, and
willfulness. I have reviewed these arguments and determined that
none warrants discussion.
7
was indeed small-ten dollars—and certification was denied on the
basis of the size of her personal stake but on the ground that
individual issues of liability predominated. In Nagel, the record
indicated
not
individual
only
claim
that
but
the
that
named
every
plaintiff
member
of
had
a
substantial
the
class
“had
a
sufficiently large stake to be able to afford to litigate on his
own.” 217 F.3d at 443. In the absence of any evidence to suggest
that
all
or
many
of
the
absent
class
members
have
claims
as
substantial as plaintiff’s, I decline to deny certification on
that ground.
For
the
foregoing
reasons,
plaintiff’s
class
certification
motion is granted. The class is certified as defined above.
ENTER ORDER:
Elaine E. Bucklo
United States District Judge
Dated: January 11, 2018
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