Sullivan v. All Web Leads, Inc.
Filing
103
MEMORANDUM Opinion and Order: For the reasons stated herein, AWLs Daubert Motion (Dkt. 70) is denied. Plaintiffs Motion to Certify Class (Dkt. 75) is granted. Signed by the Honorable Harry D. Leinenweber on 6/25/2018:Mailed notice(clw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN KARPILOVSKY and JIMMIE
CRIOLLO, JR., Individually
and on Behalf of Others
Similarly Situated,
Case No.
17 C 1307
Plaintiffs,
Judge Harry D. Leinenweber
v.
ALL WEB LEADS, INC., a
Delaware Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff
William
Sullivan
originally
brought
this
lawsuit under the Telephone Consumer Protection Act, 47 U.S.C.
§ 227
et
practices
seq.
by
(the
“TCPA”),
Defendant
All
alleging
Web
deceptive
Leads,
marketing
Inc.
(“AWL”).
Plaintiffs John Karpilovsky and Jimmie Criollo, Jr. have since
stepped into Sullivan’s shoes (see, Am. Compl., Dkt. 44), and
they now move for certification of the proposed class.
75.)
AWL
contemporaneously
expert report and testimony.
moves
to
exclude
(Dkt. 70.)
(Dkt.
Plaintiffs’
For the reasons
stated herein, the Court grants the Plaintiffs’ Motion for
Class Certification and denies AWL’s motion to exclude.
I.
As
recited
in
this
BACKGROUND
Court’s
denial
of
AWL’s
Motion
to
Dismiss, AWL offers services to insurance industry customers,
typically
Sullivan
insurance
v.
All
agents,
Web
Leads,
by
generating
Inc.,
No.
17
2378079, at *1 (N.D. Ill. June 1, 2017).
“leads.”
C
1307,
See,
2017
WL
Specifically, All
Web places calls to potential purchasers of insurance coverage
and then transfers those calls to its customers. (Am. Compl.
¶ 17,
Dkt.
44.)
To
identify
“leads,”
All
Web
owns
and
operates various websites claiming to offer insurance quotes.
(Id. ¶ 19.)
Upon visiting one of these websites, a consumer
is directed to fill out a quote request form specific to the
type of insurance of interest. (Id.)
The Plaintiffs maintain that they visited AWL’s site and
encountered the webpage now at center stage in this lawsuit.
(Id. ¶¶ 20, 33, 40, 48.)
That webpage contained fields for
the user to input personal information, including a cell phone
number, and then presented a button at the bottom of the page
that read “Submit.”
(Id. ¶¶ 21, 34, 41, 48.)
AWL’s TCPA-
required disclosure appeared in fine print below that Submit
button.
(Id. ¶ 24.)
After entering their information into
these fields and clicking Submit, Karpilovksy, Criollo, and
- 2 -
the
other
would-be
Plaintiffs
they
seek
allegedly received phone calls from AWL.
to
represent
all
(Id. ¶¶ 35, 43, 48.)
The Plaintiffs collectively assert that by clicking Submit,
they did not consent to the AWL disclosure.
(Id. ¶¶ 25-28,
38, 46, 48.)
Two motions are now before the Court:
first, a Daubert
motion, in which Defendants seek to exclude the expert report
of Alexander Young; and second, Plaintiffs’ Motion for Class
Certification.
II.
A.
DISCUSSION
AWL’s Daubert Motion
Plaintiffs have retained Alexander Young (“Young”), who
provided an expert report and then deposition testimony on the
subjects of web design and typical user behavior.
his
credentials:
Strategist
at
Young
ePageCity,
is
a
which
co-founder
he
and
describes
as
These are
the
a
Chief
“market
leading creative agency that has been engaged exclusively in
website design services since 1999.”
87-1.)
(Young Report at 3, Dkt.
From that time to present, ePageCity purports to have
launched over 1,000 websites and to have conducted, through an
associated
business,
experience
testing.
digital
(Id.)
marketing
Young
- 3 -
that
also
includes
claims
to
userhave
personally
authored
over
3,000
webpages,
and
he
holds
a
Bachelor’s degree with a double major in Computer Science and
Business Administration from the University of Stellenbosch in
South
Africa,
as
well
as
an
unspecified
equivalency from the same institution.
His
expert
“unchanged
report
website
provides
opinion”;
the
and the “best practices opinion.”
1.)
Although
AWL
moves
to
Master’s
degree
(Id. at 4.)
three
“same
opinions:
experience
the
opinion”;
(Young Rpt. at 3, Dkt. 87-
exclude
Young’s
report
and
testimony in full, AWL never challenges his unchanged website
opinion, which essentially states that the AWL website did not
materially change during the class period.
Dep.
Tr.
52:25-53:11,
agreeing
that
2013).)
the
Young’s
Dkt.
site
two
76-2
has
other
not
(AWL’s
30(b)(6)
materially
opinions
(Accord Leirer
are
designee
changed
since
presented
and
challenge,
the
considered in detail below.
To
lift
Young’s
report
over
AWL’s
Plaintiffs must show that the testimony “is the product of
reliable
sufficient
principles
facts
and
and
methods,”
data,”
and
which
that
Young
is
“based
“has
on
reliably
applied the principles and methods to the facts of the case.”
FED. R. EVID. 702(b)-(d).
In determining whether Plaintiffs
- 4 -
have met this standard, the Court may consider such factors
as:
(1) whether the methods that Young employs can be (and
have been) tested, (2) whether they have been subjected to
peer
review
and
publication,
(3)
whether
the
techniques
command widespread acceptance within the relevant scientific
community, (4) whether there are “standards controlling the
technique’s operation,” and (5) the “known or potential rate
of
error”
of
the
methods.
See,
Daubert
v.
Merrell
Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993); cf. FED. R.
EVID.
702,
factors
Advisory
that
Committee’s
courts
have
found
Notes
(listing
“relevant
in
additional
determining
whether expert testimony is sufficiently reliable”). However,
as the Supreme Court has explained, “the law grants a district
court the same broad latitude when it decides how to determine
reliability
as
it
enjoys
in
respect
to
its
ultimate
reliability determination,” and accordingly “Daubert’s list of
specific factors neither necessarily nor exclusively applies
to
all
experts
Carmichael,
original).
nonscientific
526
or
in
U.S.
every
137,
Further,
experts
“the
is
case.”
Kumho
141-42
test
(1999)
for
‘flexible.’”
- 5 -
Tire
Co.
(emphasis
reliability
United
States
v.
in
for
v.
Romero, 189 F.3d 576, 584 (7th Cir. 1999) (quoting Kumho Tire,
526 U.S. at 150).
1.
“Same Experience Opinion”
In this opinion, Young recites that:
For the entire Class Period, users of the Website
had the same online experience, i.e. users who
visited AWL’s Website would have experienced the
same consent procedure in which the contested
language was placed beneath the “Submit” button
(without alerting the users that legal disclosures
appeared
below
the
“Submit”
button)
and
was
therefore not visible to the users unless they
scrolled down to view it.
(Young Rpt. at 3, Dkt. 87-1.)
Defendants
object
to
the
reliability
of
this
opinion,
claiming that it is neither testable nor actually put to any
testing here.
But Young did conduct testing—albeit limited—
before offering this correspondingly limited opinion.
Young
began by identifying the market shares of top-performing web
browsers at the start and the end of the class period.
at 6.)
(Id.
For each of those periods, Young reports accounting
for the browsers used in 93-94% of all web visits (to any
website).
(Id.)
Next, Young sought to verify the consistency
of the user experience across these different browsers.
so,
Young
describes
used
as
an
“an
emulator
industry
called
leading
- 6 -
Browserstack,
tool
for
To do
which
emulating
he
how
different
Young
browsers
relates
would
that
his
render
a
webpage.”
(Id.
non-litigation-related
at
clients
hired him to run emulations on this same program.
9.)
have
He further
relates that companies such as Microsoft, Twitter, and AirBnB
routinely
use
Browserstack
to
test
the
display
webpages on different browsers and devices.
to
Young’s
report,
he
used
Browserstack
of
(Id.)
to
their
According
test
the
AWL
webpage on each of the browsers he identified as in popular
use
during
the
relevant
time
periods.
As
the
screenshots
contained within Young’s report show, all of the results are
substantially similar.
Young’s
(Id. at 10-15.)
methodology
suffices,
under
the
liberal
admissibility standard applied to expert testimony, to clear
the hurdle for reliability.
897
F.2d
293,
298
(7th
See, Krist v. Eli Lilly & Co.,
Cir.
1990)
(“[T]he
rule
on
expert
testimony [is] notably liberal.”).
Personal observation of
the
deemed
kind
Young
made
here
is
often
reliable source of information.
to
be
the
most
Loeffel Steel Prod., Inc. v.
Delta Brands, Inc., 372 F. Supp. 2d 1104, 1116 (N.D. Ill.
2005) (citing Daubert, 509 U.S. at 590 n. 9).
“Experts of all
kinds tie observations to conclusions through the use of what
Judge Learned Hand called ‘general truths derived from . . .
- 7 -
specialized
(citation
experience.’”
omitted).
Kumho
Such
Tire,
observations
526
U.S.
are
the
at
basis
148
of
Young’s “same experience” opinion, and they could have been
empirically
validated
or
refuted
by
additional
Defendants’ part if they thought it necessary.
testing
on
See, Clark v.
Takata, 192 F.3d 750, 758 (7th Cir. 1999) (opining that handson testing can be a reasonable methodology).
AWL’s gripe that
Young could not have tested “every possible combination” of
browsers and devices goes to weight, not reliability, and does
not agitate for striking Young’s report.
(Daubert Reply at 4,
Dkt. 95.)
2.
“Best Practices Opinion”
In this opinion, Young recites that:
“The format for the
Website did not comply with industry ‘best practices’ . . .
[for] [e]nsuring that users have notice of the terms.”
Rpt. at 3, 18, Dkt. 87-1.)
“best
practices”
experience.
are,
(Young
Young goes on to recite what these
according
to
his
knowledge
and
He represents, among other things, that consent
language must be conspicuous, explicit, and clearly visible,
which Young explains may be accomplished either by making the
terms
“visible
ahead
of
the
Submit
button”
or
else
by
requiring users to click a box signifying their recognition
- 8 -
and
acknowledgment
of
the
terms
prior
to
clicking
Young’s
opinion
Submit.
(Id. at 18.)
Clearly,
then,
the
basis
of
bolstered by empirically tested data.
“is
not
unreliable
simply
because
is
not
But expert testimony
it
is
founded
on
[a
witness’s] experience rather than on data; indeed, Rule 702
allows a witness to be ‘qualified as an expert by knowledge,
skill, experience, training, or education.’”
v.
Emigrant
Sav.
Bank,
619
F.3d
748,
761
Metavante Corp.
(7th
Cir.
(quoting FED. R. EVID. 702) (emphasis in original).
raises other objections as well.
Young’s
opinion
nowhere
cites
2010)
Yet AWL
First, AWL complains that
to
the
best
practices
presenting consent language in the TCPA context.
for
But Young
does not profess to recite such specific practices; indeed,
Young forthrightly admitted in his deposition that he is not
aware of TCPA-specific consent standards.
Tr. 235:24-236:21, Dkt. 70-2.)
(See, Young Dep.
If AWL believes that lack of
specificity renders Young’s opinion less persuasive or less
relevant, it may argue as much; but these contentions do no
heavy lifting for AWL now, where the issue is the report’s
reliability.
Next,
Defendants
point
out
that
when
Young
identifies two websites as support for his characterization of
- 9 -
“best practices,” Young fails to explain why those websites,
particularly, are worthy of recognition or the practices they
espouse meritorious.
choosing
these
At his deposition, Young explained that
sites
over
alternatives
made
because “[t]hey all have the same story.”
no
difference
(Id. 242:17-243:2.)
According to Young, then, these websites accord with what all
others of their ilk will demonstrate: The best practices for
ensuring a user is aware of a site’s terms comport with the
practices recited in Young’s opinion.
If AWL was incredulous,
it could have produced its own, competing expert—which it did
not—or
it
may
weight
the
challenge
finder
of
Young’s
fact
conclusions
should
afford
and
them.
thus
But
the
AWL’s
objection to Young’s exemplars does not sufficiently undermine
the
reliability
of
his
opinion,
given
the
breadth
of
professional experience Young has in website design.
One
note
further
on
Young’s
opinions:
Defendants
also
object, though not in so many words, to what the Court will
refer
to
opinion
as
does
Young’s
not
“typical
appear
as
user
a
opinion.”
discrete
Though
conclusion
in
this
his
report, Young testified at his deposition that a typical user
of a generic website will “stop scrolling” once she sees the
Submit
button.
(Id.
107:22-109:2.)
- 10 -
The
reasonable
implication of this testimony is that because AWL’s terms only
appear below the Submit button, a typical AWL website user
would stop scrolling down before reaching the AWL terms.
with
Young’s
“best
practices
opinion”
described
above,
As
the
basis for the “typical user opinion” is Young’s considerable
experience
in
the
website
design
industry.
He
admits
he
conducted no empirical testing of how typical users of AWL’s
site actually behaved.
opinions
predicated
design.
See,
But again, Young may present expert
upon
Metavante
his
years
Corp.,
of
619
experience
F.3d
at
761.
in
web
AWL’s
objections to Young’s method once more go to weight and not
admissibility.
Cf. Fletcher v. Doig, 196 F. Supp. 3d 817, 824
(N.D. Ill. 2016).
For these reasons, Defendants’ Motion to exclude Young’s
expert report and testimony is denied.
B.
“To
be
Plaintiffs’ Motion for Class Certification
certified,
a
proposed
class
must
satisfy
the
requirements of Federal Rule of Civil Procedure 23(a), as well
as one of the three alternatives in Rule 23(b).”
Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir.
2012) (citation omitted).
prove
numerosity,
Rule 23(a) requires Plaintiffs to
typicality,
commonality,
- 11 -
and
adequacy
of
representation.
Id.
Plaintiffs
in
this
case
seek
certification under Rule 23(b)(3), which also requires them to
prove that: (1) the questions of law or fact common to the
members
of
the
proposed
class
predominate
over
questions
affecting only individual members; and (2) a class action is
superior
to
controversy.
other
Id.
available
In
methods
conducting
the
of
resolving
class
the
certification
analysis, the Court need only consider the evidence submitted
by the parties and determine whether Plaintiffs have proven
each of Rule 23’s elements by a preponderance of the evidence.
Kleen Prod. LLC v. Int’l Paper, 306 F.R.D. 585, 589 (N.D. Ill.
2015) (citing Messner, 669 F.3d at 811), aff’d sub nom., Kleen
Prod. LLC v. Int’l Paper Co., 831 F.3d 919 (7th Cir. 2016).
Finally,
Plaintiffs
must
prove
their
proposed
class
is
“ascertainable,” meaning the class is clearly defined and its
parameters
based
on
objective
criteria.
See,
Mullins
v.
Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).
Plaintiffs
seek
certification
for
the
class
of
individuals defined as:
All persons within the United States who filled out
and submitted an insurance quote form on Defendant’s
website
www.affordable-health-insurance-plans.org
and then received a non-emergency telephone call
from All Web Leads, or any party acting on its
behalf, to a cellular telephone through the use of
- 12 -
all
an
automated
telephone
dialing
artificial or prerecorded voice.
system
or
an
(Am. Compl. ¶ 51, Dkt. 44.)
1.
In
its
opposition
Threshold Issues
to
class
wields a single weapon: consent.
certification,
AWL
mainly
It contends again and again
that because some or most of the proposed class might have
consented to receive calls from AWL, AWL cannot be on the hook
for many of the alleged TCPA violations, and the Court will
have to muddle through a cumbersome and individualized inquiry
to sort out which class members, if any, actually have a good
claim.
This is not AWL’s first go-round with this argument;
it raised the same thing in its earlier Motion to Dismiss,
arguing that the Court should strike the proposed class even
then.
The Court refused to do so at that early stage, and
observed:
[The proposed class comprises] individuals each of
whom engaged in the same consent procedure . . .
filling out the quote form, clicking “Submit,” and
then receiving an autodialed cell phone call. Thus,
absent some other interface with All Web, each
putative class member gave the same consent; the
ability of All Web to invoke consent as an
affirmative defense to each class member is uniform;
and determining the legal efficacy of this consent
under the TCPA “will resolve an issue that is
central to the validity of each one of the claims in
one stroke.”
- 13 -
Sullivan, 2017 WL 2378079, at *9 (quoting Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011)).
AWL thus learned of
the Court’s perspective on this question back in June 2017,
and yet in the wake of that opinion, AWL took no steps to
shore up its argument.
expert,
Young,
materially
who
changed
The Plaintiffs, however, retained an
testified
during
that
the
the
class
AWL
website
period
and,
was
for
not
that
reason, all members of the proposed class experienced the same
information-submission and click-through procedure when they
used AWL’s website.
(See, supra, at Parts II-A, II.A.1.)
AWL
did not retain a rebuttal expert nor in any other fashion
produce evidence showing that any member of the class actually
consented to the AWL terms.
That
shortcoming
matters.
Consider
Rule
23(b)(3)’s
predominance requirement: “While it is plaintiff’s burden to
meet the predominance test,” opposition to predominance “based
on theory, not evidence, is not a weighty objection.”
Johnson
v. Yahoo!, Inc., No. 14 CV 2028, 2016 WL 25711, at *7 (N.D.
Ill. Jan. 4, 2016).
Thus, where the defendant’s objection to
class certification fails to set forth specific evidence “and
instead
only
makes
vague
assertions
about
consent,”
individualized issues regarding consent will not predominate
- 14 -
over common questions of law or fact.”
Toney v. Quality Res.,
Inc., 323 F.R.D. 567, 587 (N.D. Ill. 2018) (citation omitted).
Rather than produce any specific evidence, AWL serves up a
banquet of lawyerly free association:
AWL asserts, without
evidence,
opinion—again,
states
that
that
Young’s
typical
typical
users
do
user
not
scroll
below
which
“Submit”
buttons—does not much matter because some users might have
used
screens
large
enough
to
display
the
entire
webpage,
disclosure and all, without any need to scroll down.
AWL also
claims that contrary to Young’s opinion, “research concludes
that consumers do, in fact, scroll.”
(Cl. Cert. Resp. at 18,
Dkt. 87.)
AWL fortifies this opinion with two from-the-blue
citations
to
online
articles
which
purportedly
suggest
consumers “know to scroll to navigate a webpage’s content.”
(Id. at 19.)
There is more.
AWL next claims that because 2.3
percent of the U.S. population is visually impaired, the class
definition fails to account for a not-insignificant portion of
the class that uses “screen readers,” which presumably read
aloud the content on a webpage.
(Id. at 20.)
AWL does not
bother to include within this purely legal conjecture what
proportion of the visually-impaired population actually uses
screen readers nor any explanation for how these readers work,
- 15 -
i.e., whether they automatically read the fine print on every
web page, or not.
As detailed further below, AWL swings its consent defense
as a cudgel against nearly all of the Rule 23 requirements.
But
for
this
defense
to
have
any
traction
at
the
class
certification phase, the defendant asserting it must produce
specific evidence showing that a significant percentage of the
proposed class provided consent.
at
587
(remarking
that
See, e.g., Toney, 323 F.R.D.
without
specific
evidence,
consent
defenses cannot defeat Rule 23 predominance); Savanna Group,
Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *3-4
(N.D. Ill. Jan. 4, 2013) (St. Eve, J.) (rejecting defendant’s
consent objection to class definition because defendant failed
to offer specific evidence of consent).
“Mere speculation,”
which is all AWL has offered here, will not suffice.
Toney,
323 F.R.D. at 587.
Further, AWL not only failed to pony up specific evidence
of
consent,
entirely.
its
fact-intensive
speculations
miss
the
mark
TCPA disclosures must be “clear and conspicuous.”
47 C.F.R. § 64.1200(f)(8)(i).
That standard is not a user-
dependent inquiry, but rather asks whether a notice would be
“apparent
to
the
reasonable
consumer.”
- 16 -
Sullivan,
2017
WL
2378079,
at
added)).
and
*7
(citing
47
C.F.R.
§ 64.1200(f)(3)
(emphasis
As such, AWL can spin its wheels about screen sizes
hearing
aids
all
it
likes,
but
those
unsupported
suppositions do not help their class certification rejoinder
one whit.
In short:
providing
expert
specific
report
conclusions.
escape
AWL could have strengthened its position by
evidence
of
its
of
consent
own
that
or
introducing
contradicted
an
Young’s
Having done neither, AWL now tries to fashion an
hatch
brainstorming.
for
itself
from
little
That will not do.
more
than
legal
Consent remains a common
issue and the claims of the whole class might well rise or
fall with that determination.
See, Physicians Healthsource,
Inc. v. A-S Medication Sols., LLC, 318 F.R.D. 712, 725 (N.D.
Ill.
2016)
(citation
omitted);
see
also,
Butler
Roebuck & Co., 727 F.3d 796, 798 (7th Cir. 2013).
more
from
AWL,
their
consent-oriented
musings
v.
Sears,
But without
pose
little
rebuttal to Plaintiffs’ Motion for Class Certification.
One
other
threshold
issue
worth
addressing:
AWL
molds their consent defense into an attack on standing.
also
If
most proposed class members consented, AWL reasons, then most
members have no TCPA claim and thus no cognizable injury this
- 17 -
Court may redress.
True, a class “should not be certified if
it is apparent that it contains a great many persons who have
suffered no injury at the hands of the defendant.”
Kohen v.
Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009)
(citation omitted).
these
proposed
Congress
action
members’
designed
and
unsolicited
But nothing is “apparent” here, where
the
consent
TCPA
to
is
purely
provide
statutory
damages
to
telephonic
advertisements.
a
hypothetical.
private
individuals
See,
right
who
of
receive
Ira
Holtzman,
C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013).
Those are
exactly the injuries alleged here, and they suffice to confer
standing on the Plaintiffs.
2.
a.
The
members.
proposed
Rule 23(a)
Numerosity
class
contains
approximately
two
million
Likely recognizing that a class of this size is “so
numerous that joinder of all members is impracticable,” AWL
wisely does not contest numerosity.
sufficiently numerous.
Clearly, the class is
See, e.g., Swanson v. Am. Consumer
Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (holding
that a proposed class of forty was “a sufficiently large group
to
satisfy
Rule
23(a)”),
abrogated
- 18 -
on
other
grounds
as
recognized in Krieger v. Gast, No. 98 C 3182, 1998 WL 677161,
at *6-7 (N.D. Ill. Sept. 22, 1998)).
b.
Commonality
“Commonality requires the plaintiff to demonstrate that
the class members have suffered the same injury,” Dukes, 564
U.S. at 349-50 (internal quotation marks omitted), and that
their “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.’”
Phillips v. Sheriff of Cook Cnty.,
828 F.3d 541, 551 (7th Cir. 2016) (quoting Dukes, 564 U.S. at
350).
Here, all of the allegedly TCPA-violative calls were
made by AWL’s autodialers to cell phone numbers obtained after
each Plaintiff clicked through the same procedure on the AWL
website.
highly
Still,
AWL
individualized
determine consent.
strenuously
inquiry
objects,
will
arguing
prove
that
necessary
a
to
See, e.g., Kljajic v. Whirlpool Corp., No.
15-cv-05980, 2017 WL 1862640, at *22 (N.D. Ill. May 9, 2017)
(holding
that
plaintiffs
failed
to
show
commonality
where
there was no common method of proof to facilitate a “once-andfor-all” decision for all would-be class claims).
- 19 -
There cannot be a common method of proof here, says AWL,
because consent will turn upon whether any given user had to
scroll down on her particular screen to reveal the consent
disclosure and, if so, whether that user actually scrolled
down.
AWL is correct to say that courts “determine whether
issues of individual consent defeat commonality . . . in TCPA
cases on a case-by-case basis after evaluating the specific
evidence available to prove consent.”
(Cl. Cert. Resp. at 16,
Dkt. 92 (citing A Custom Heating & Air Conditioning, Inc. v.
Kabbage, Inc., No. 16-cv-02513, 2018 WL 488257, at *9 (N.D.
Ill. Jan. 18, 2018).)
But where, as here, the defendant does
not produce any specific evidence of consent, the Court has no
basis to evaluate whether that unavailable evidence undermines
commonality.
Absent any such evidence, all that remains are
the common contentions shared among class members that after
each
of
website,
them
they
autodialers.
completed
each
the
same
received
submit
unsolicited
procedure
calls
on
AWL’s
from
AWL’s
Thus, each Plaintiff’s claim presents a common
question: whether AWL’s call violated the TCPA.
Perhaps AWL
has a consent defense to those claims, but without specific
evidence now demonstrating the merit of that proposed defense,
its
adjudication
will
have
to
- 20 -
wait.
The
proposed
class
satisfies
Grp.,
the
LLC,
commonality
318
F.R.D.
requirement.
64,
74
(N.D.
Cf.
Ill.
Bernal
2016)
v.
NRA
(citation
omitted) (“[S]ome degree of factual variation will not defeat
commonality
provided
that
common
questions
yielding
common
answers can be identified.”).
c.
Typicality
A claim is typical if it “arises from the same event or
practice or course of conduct that gives rise to the claims of
other class members and . . . [is] based on the same legal
theory.”
2009)
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir.
(citation
omitted).
This
requirement
“directs
the
district court to focus on whether the named representatives’
claims have the same essential characteristics as the claims
of the class at large.”
Id.
Once again, AWL contends that because many of the class
members consented to receive AWL’s call, the class is chockfull of people without valid TCPA claims and no class should
be certified “if it is apparent that it contains a great many
persons
who
defendant.”
677
(7th
“should
be
have
suffered
no
injury
at
the
hands
of
the
Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672,
Cir.
2009)
determined
(citation
with
omitted).
reference
- 21 -
to
But
[the
typicality
defendant’s]
actions,
not
defendant]
with
might
respect
have
to
against
particularized
certain
class
defenses
[the
members.”
CE
Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721,
725 (7th Cir. 2011) (quoting Wagner v. NutraSweet Co., 95 F.3d
527, 534 (7th Cir. 1996)).
The named Plaintiffs allegedly
engaged in the same conduct as the proposed class members and
then
received
substantially
similar
calls
from
AWL;
this
clears the typicality hurdle.
d.
Adequacy
Adequacy involves two inquiries: “(1) the adequacy of the
named plaintiffs as representatives of the proposed class’s
myriad members, with their differing and separate interests,
and (2) the adequacy of the proposed class counsel.”
Gomez v.
St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011)
(citation
omitted).
A
proposed
class
representative
is
inadequate if his interests are “antagonistic or conflicting”
with those of the absent class members, Rosario v. Livaditis,
963 F.2d 1013, 1018 (7th Cir. 1992), or if he is subject to a
defense
not
applicable
to
the
class
as
a
whole,
see,
CE
Design, 637 F.3d at 726.
First, AWL presents a repackaged version of the consent
argument.
The named Plaintiffs aver that they never actually
- 22 -
saw the consent disclosures, but other would-be class members
might have.
According to AWL, this possible distinction could
subject the named Plaintiffs to “additional defenses” that do
not necessarily apply to the rest of the class.
Resp.
at
defenses”
discussed
ignores
25,
Dkt.
92.)
contemplate
at
that
conspicuous”
length
in
whether
is
an
To
the
same
this
a
the
extent
TCPA
objective
these
consent
opinion,
inquiry
perspective of a reasonable consumer.
“additional
defense
AWL’s
disclosure
(Cl. Cert.
already
argument
is
again
“clear
conducted
from
and
the
See, Sullivan, 2017 WL
2378079, at *7) (citing 47 C.F.R. § 64.1200(f)(3)).
If AWL
has an entirely different defense in mind, however, it should
have
articulated
it.
“The
federal
legal arguments for litigants.”
courts
will
not
invent
Stransky v. Cummins Engine
Co., 51 F.3d 1329, 1335 (7th Cir. 1995), as amended, (Apr. 7,
1995).
This first argument fails.
AWL marshals two other arguments against the adequacy of
the named representatives: (1) named Plaintiff Criollo is not
seeking damages, so he is presumptively inadequate; and (2)
Criollo does not understand the nuances of his case.
contentions are meritless.
These
First, Defendants cite Criollo’s
deposition as evidence that he is not seeking damages, but
- 23 -
they
wholly
ignore
the
very
next
lines
in
where Criollo confirms that he actually is.
the
transcript,
(See, Cl. Cert.
Reply at 18, Dkt. 96 (citing Criollo Dep. Tr. 31:15-32:6).)
Second, nowhere in Rule 23 or the case law applying it is
there a requirement that named plaintiffs have a firm grasp of
the legal intricacies of their cases.
counsel is for.
That is what adequate
Criollo will not be faulted nor the proposed
class penalized because the named Plaintiff does not happen to
have a law degree.
The named Plaintiffs do not have any
interests antagonistic to the proposed class and there is no
reason
proposed
by
AWL
or
suggested
anywhere
else
in
the
record to suspect that Plaintiffs’ counsel are at odds with
the proposed class’s best interests.
As to the adequacy of counsel, Plaintiffs represent that
their present counsel, Lieff Cabraser Heimann & Bernstein, LLP
(“LCHB”)
and
experienced
Kozonis
&
class-action
Associates
Ltd.
practitioners
who
(“Kozonis”),
have
are
litigated
dozens of TCPA cases, including several large settlements, and
have been appointed to lead many such cases in this District.
(See, generally, Selbin Decl., Dkt. 76; Klinger Decl., Dkt.
77.)
AWL does not contest any of these assertions nor suggest
a reason why LCHB and Kozonis fall short of being “qualified,
- 24 -
experienced,
and
generally
litigation,” as required.
able
to
conduct
the
proposed
Wheeler v. Midland Funding LLC, No.
15 C 11152, 2018 WL 1920254, at *4 (N.D. Ill. Apr. 24, 2018)
(quoting Susman v. Lincoln Am. Corp., 561 F.2d 86, 90 (7th
Cir. 1977)).
The Court agrees that these counsel are capable
and that the requirements for adequacy are met in this case.
3.
Rule 23(b)(3) Requirements
a. Predominance
Under Rule 23(b)(3), questions of law or fact common to
the
class
affecting
members
only
must
individual
predominate
members.
over
any
“[T]he
questions
requirement
of
predominance is not satisfied if ‘individual questions . . .
overwhelm questions common to the class.’”
Butler, 727 F.3d
at 801 (7th Cir. 2013) (quoting Amgen Inc. v. Conn. Ret. Plans
& Trust Funds, 568 U.S. 455, 468 (2013)).
Predominance fails
where “affirmative defenses will require a person by person
evaluation
precludes
of
conduct
individual
to
determine
recovery.”
whether
Bernal,
318
[a
defense]
F.R.D.
at
75
(quoting Clark v. Experian Info., Inc., 233 F.R.D. 508, 512
(N.D. Ill. 2005), aff’d, 256 Fed. App’x 818 (7th Cir. 2007)).
But
again,
vague
assertions
about
consent
cannot
elevate
alleged individualized issues above common questions of law or
- 25 -
fact.
See,
Toney,
323
F.R.D.
at
587
(citation
omitted).
Finally, the predominance inquiry turns upon whether common
questions predominate, not whether those questions will or are
likely to ultimately be answered in favor of the class.
See,
Amgen, 568 U.S. at 459.
The
Court
will
not
beat
to
death
AWL’s
unsurprising
rebuttal.
As above, AWL contends consent issues predominate.
The
disagrees.
Court
Because
AWL
produced
zero
specific
evidence showing that some proposed members consented, AWL’s
ability “to invoke consent as an affirmative defense to each
class member is uniform,” and that defense will likely prove
meritorious or ineffective against the class in full.
Sullivan, 2017 WL 2378079, at *9.
case
is
whether
the
proposed
See,
The key question in this
class
members
submitting their information on AWL’s website.
consented
by
Despite AWL’s
inventive characterizations to the contrary, that question may
be resolved in one stroke.
See, Butler, 727 F.3d at 801
(citation omitted).
b.
Superiority
Rule 23(b)(3) also requires that a plaintiff demonstrate
that a class action is superior to other available methods of
adjudication.
Class
certification
- 26 -
is
usually
considered
a
superior method of adjudicating claims involving standardized
conduct, and that is exactly what is at play here.
See,
Cicilline v. Jewel Food Stores, Inc., 542 F. Supp. 2d 831, 838
(N.D. Ill. 2008).
The proposed class represents two million
basically identical lawsuits.
single,
representative
class
Knocking them all out via a
would
judicial and party resources.
be
an
efficient
use
of
See, Hinman v. M & M Rental
Ctr., Inc., 545 F. Supp. 2d 802, 807 (N.D. Ill. 2008).
Class
certification is a superior vehicle for advancing the claims
at bar, and Rule 23(b)(3) is accordingly satisfied.
4.
A
Rule
parameters
23
based
class
on
Ascertainability
must
objective
be
clearly
criteria.
defined
See,
and
Mullins
Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).
its
v.
The
question here is not one of administrative feasibility, but
rather definition: An ascertainable class is comprised of “a
particular group, harmed during a particular time frame, in a
particular location, in a particular way.”
Mullins, 795 F.3d
at 660.
AWL
argues
the
putative
class
is
not
ascertainable
because it might contain a substantial number of people who
consented to being called and thus have no claim under the
- 27 -
TCPA.
See, Oshana v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th
Cir. 2006) (noting that overbroad classes that contain members
without valid claims fail for lack of ascertainability).
AWL
cites two cases in support of its position: Jamison v. First
Credit Services, No. 12-cv-04415, 2013 WL 3872171, (N.D. Ill.
July
29,
2013),
Riverboat/Casino
2011)
(both
grounds).
and
Vigus
Cruises,
denying
These
Inc.,
class
v.
274
Southern
F.R.D.
certification
authorities
do
little
229
Illinois
(S.D.
Ill.
on
ascertainability
to
help
AWL
here.
First, both were decided before the Seventh Circuit’s opinion
in
Mullins,
which
ascertainability
expressly
standard
rejected
requiring
the
“heightened”
consideration
of
administrative feasibility and an evaluation of the validity
of the proposed members’ claims.
Toney,
323
F.R.D.
inappropriately
at
582
applied
a
&
795 F.3d at 657-58; see,
n.11
clear
(remarking
and
convincing
that
Jamison
standard
as
opposed to the preponderance standard and, being pre-Mullins,
was
not
persuasive
on
the
issue
of
ascertainability”).
Second, the defendants in both Jamison and Vigus made a key
move that AWL never did: They both provided specific evidence
of consumers’ individualized consent, elevating their consent
defenses beyond mere legal conjecture.
- 28 -
See, Toney, 323 F.R.D.
at 582 (characterizing Jamison); Sullivan, 2017 WL 2378079, at
*9 (characterizing Vigus).
The
Plaintiffs
have
satisfied
the
requirement under the Mullins standard.
forth
a
method
of
identifying
ascertainability
Beyond simply setting
the
class
members,
as
is
required, the Plaintiffs have actually identified, using call
data
provided
by
AWL,
the
approximately
individuals who comprise the class.
two
million
This satisfies Rule 23.
Cf. Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240,
248
(N.D.
numbers
Ill.
2014)
established
(holding
a
that
list
“sufficiently
of
930,000
phone
ascertainable”
TCPA
class).
IV.
CONCLUSION
For the reasons stated herein, AWL’s Daubert Motion (Dkt.
70) is denied.
Plaintiffs’ Motion to Certify Class (Dkt. 75)
is granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
June 25,2018
- 29 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?