Clough v. Revenue Frontier, LLC et al

Filing 115

MEMORANDUM AND ORDER granting 91 Motion to Certify Class. Clough has standing to sue and the proposed class satisfies the requirements of Rule 23. Accordingly, Clough's motion for class certification (Doc. No. 91) is granted. Clough is appointed as lead plaintiff and his counsel as lead counsel. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Robert W. Clough, II
on behalf of himself and
other similarly situated
Case No. 17-cv-411-PB
Opinion No. 2019 DNH 096

v.
Revenue Frontier, LLC et al.

MEMORANDUM AND ORDER
Robert W. Clough, II, filed this action on behalf of
himself and similarly situated individuals under the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, against
Revenue Frontier, LLC, Supreme Data Connections, LLC, and
William Adomanis.

The complaint alleges that the defendants

violated the TCPA by sending unsolicited text messages
advertising the services of National Tax Experts, Inc., to
Clough and other recipients using an automatic telephone dialing
system.

Clough has moved to certify a plaintiff class and

appoint his attorneys as class counsel.

The defendants object,

arguing that Clough lacks Article III standing and cannot meet
the requirements of Federal Rule of Civil Procedure 23.
I.

BACKGROUND

On June 14, 2017, Clough received a text message on his
cellular telephone.

The message stated, “Hi, Did you ever take

care of your IRS/State Tax Debt? I can eliminate back taxes,

1

penalties, liens, levies. . . Call us for help.”
¶ 30, Doc. No. 88.

Am. Compl.

Although Clough did not owe any back federal

or state taxes, he called the number from which the text was
sent, provided a fake name, and feigned interest in the
solicited services to identify the entity that called him.

He

learned that the text message was a solicitation for National
Tax Experts, Inc. (“NTE”).
NTE, however, did not send the text message itself.
Instead, it hired a company called Airtime Media LLC to promote
NTE’s tax relief services and generate inbound customer calls.
Airtime Media, in turn, hired Revenue Frontier as a lead
generator for the NTE campaign.

Revenue Frontier then engaged

W4, LLC to promote NTE’s services on behalf of Revenue Frontier.
W4 is an affiliate network that has agreements with independent
contractors known as “affiliates” or “publishers” who use
various methods to promote products and services and to
encourage customers to visit websites or call telephone numbers
to purchase products or services.

In this case, W4 arranged for

its affiliate, U.E.G. Inc., to promote NTE’s services via text
messages. 1

U.E.G. then hired Supreme Data Connections, LLC

(“Supreme Data”) to send text messages for the NTE campaign.

1

W4 also hired another affiliate, Fluent, Inc., to send text
messages for the NTE campaign. The parties agree that the
messages Fluent sent are not at issue in this case.
2

Defendant Adomanis is Supreme Data’s manager and registered
agent.
During the discovery process, Supreme Data produced a list
of text messages it sent for the NTE campaign.

Clough’s expert

witness Anya Verkhovskaya analyzed the list and concluded that
18,937 wireless numbers received 18,971 texts messages.
Pl.’s Ex. 13. ¶ 44, Doc. No. 91-14.

See

Another expert witness,

Randall Snyder, has opined that the platform utilized to send
the texts (the SDC Messaging Application employing the Sendroid
software) qualifies as an automatic telephone dialing system
(“ATDS”).

See Pl.’s Ex. 15 ¶ 61, Doc. No. 91-16.

Clough alleges that he did not consent to the receipt of
any text message promoting tax debt relief services.

The

defendants have yet to produce any evidence that calls Clough’s
allegation into question.

Nor have the defendants identified

any evidence that the other recipients of the 18,971 text
messages consented to receive them.
II.

CLASS CERTIFICATION STANDARD

Federal Rule of Civil Procedure 23 sets out the
requirements for class certification.

The proposed class

representative must demonstrate that each of the rule’s
requirements has been satisfied.

Makuc v. Am. Honda Motor Co.,

835 F.2d 389, 394 (1st Cir. 1987).
inquiry has three steps.

The class certification

First, the class representative must
3

show that the proposed class satisfies all four of Rule 23(a)’s
threshold requirements, which are commonly known as numerosity,
commonality, typicality, and adequacy.

See Fed. R. Civ. P.

23(a)(1)-(4); see also Berenson v. Nat’l Fin. Servs. LLC, 485
F.3d 35, 38 (1st Cir. 2007).

Second, the class representative

must demonstrate that the lawsuit may be maintained as a class
action under one of the three subsections of Rule 23(b), which
allow class actions where: (1) separate actions by or against
individual class members would risk imposing inconsistent
obligations on the party opposing the class; (2) “the party
opposing the class has acted or refused to act on grounds that
apply generally to the class” and injunctive relief is suitable;
or (3) common questions of law or fact predominate and a class
action would be the superior method of proceeding.
P. 23(b).

Fed. R. Civ.

Third, the representative must show that “a putative

class [is] ascertainable with reference to objective criteria.”
In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015)
(quoting William B. Rubenstein, Newberg on Class Actions §§ 3:1,
3:3 (5th ed. 2013)).
Although a court should not decide the merits of a case at
the certification stage, Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 177–78 (1974), a motion to certify “generally involves
considerations that are ‘enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action.’”
4

Coopers &

Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting Mercantile
Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)).

The First

Circuit has held that “[a] district court must conduct a
rigorous analysis of the prerequisites established by Rule 23
before certifying a class.”

Smilow v. Sw. Bell Mobile Sys.,

Inc., 323 F.3d 32, 38 (1st Cir. 2003).

In doing so, a court may

resolve disputed factual issues that arise in the course of
class certification by considering materials beyond the
pleadings.

In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 6

(1st Cir. 2005).
III. ANALYSIS
Clough proposes to certify the following class:
(1) All persons in the United States who are the users
or subscribers of the approximately 18,937 cellular
telephones identified in Anya Verkovshkaya’s report
(2) to which cellular telephone numbers a text message
was sent [(3)] using the SDC Messaging Application,
employing the Sendroid software [(4)] within four
years of the filing of the complaint.
Doc. No. 91 at 1.

He asserts that the proposed class satisfies

all of the Rule 23(a) prerequisites and is eligible for
certification under Rule 23(b)(3).

The defendants object to

class certification on the grounds that (1) Clough and other
proposed class members lack standing to sue; and (2) the
proposed class does not satisfy several of Rule 23’s
requirements.

I address the defendants’ standing argument first

because a court lacks subject matter jurisdiction unless the
5

plaintiffs have Article III standing.

See Pollard v. Law Office

of Mandy L. Spaulding, 766 F.3d 98, 101 (1st Cir. 2014).
A.

Article III Standing

The defendants argue that Clough and other members of the
proposed class lack standing to sue because they did not suffer
a concrete injury.

The defendants are wrong.

Standing “limits the category of litigants empowered to
maintain a lawsuit in federal court to seek redress for a legal
wrong,” and “requires a concrete injury even in the context of a
statutory violation.”
1547, 1549 (2016).

Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

“When one sues under a statute alleging the

very injury the statute is intended to prevent, and the injury
has a close relationship to a harm traditionally providing a
basis for a lawsuit in English or American courts, a concrete
injury has been pleaded.”

Susinno v. Work Out World Inc., 862

F.3d 346, 351 (3d Cir. 2017) (internal quotation marks and
alterations omitted); see Spokeo, 136 S. Ct. at 1549.
Every circuit court that has considered Article III
standing in the context of a TCPA claim has held that the
recipient of an unsolicited call 2 has suffered a concrete harm.

2

The TCPA’s prohibition against auto dialed calls applies to
both voice calls and text messages. See Murphy v. DCI
Biologicals Orlando, LLC, 797 F.3d 1302, 1305 (11th Cir. 2015)
(citing In re Rules & Regulations Implementing the Tel. Consumer
Prot. Act of 1991, 18 FCC Rcd. 14014, 14115 ¶ 165 (2003)).
6

See Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 93 (2d
Cir. 2019); Susinno, 862 F.3d at 351-52; Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017); see also
Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 633 (6th
Cir. 2015) (TCPA plaintiff who received unwanted fax
transmission suffered concrete injury in form of “a violation of
the statutorily-created right to have one’s phone line and fax
machine free of the transmission of unsolicited
advertisements”); Palm Beach Golf Ctr.-Boca, Inc. v. John G.
Sarris, D.D.S., P.A., 781 F.3d 1245, 1251-52 (11th Cir. 2015)
(same).

Unsolicited calls, by their nature, are a nuisance and

an invasion of privacy that the statute aimed to prevent.
Susinno, 862 F.3d at 351; Van Patten, 847 F.3d at 1043.

In

identifying this harm, Congress “sought to protect the same
interests implicated in the traditional common law cause of
action” for intrusion upon seclusion.

Susinno, 862 F.3d at 351-

52; see Van Patten, 847 F.3d at 1043 (TCPA claims closely relate
to traditional claims for “invasions of privacy, intrusion upon
seclusion, and nuisance [which] have long been heard by American
courts”).
decisions.

I am persuaded by the reasoning that underlies these
Accordingly, to establish standing, a plaintiff

alleging a violation under the TCPA “need not allege any
additional harm beyond the one Congress has identified.”
Spokeo, 136 S. Ct. at 1549.
7

The complaint alleges that Clough and other proposed class
members each received an unsolicited text message.

The inherent

nuisance and invasion of privacy resulting from that unsolicited
contact is sufficient to satisfy Article III standing. 3
B.

Ascertainability

A proposed class must be sufficiently “defined” or
“ascertainable” based on objective criteria.

See Matamoros v.

Starbucks Corp., 699 F.3d 129, 139 (1st Cir. 2012).

In other

words, “it must be administratively feasible to determine
whether a particular individual is a member.”

In re Dial

Complete Mktg. & Sales Practices Litig., 312 F.R.D. 36, 49
(D.N.H. 2015) (internal quotation marks omitted).
Here, objective criteria determine the parameters of the
class: all wireless users or subscribers who were sent a text
message by Supreme Data as part of the NTE campaign.

Supreme

Data produced a list of 18,937 wireless numbers that received
the texts, which can be used to identify the individual class
members.

Thus, the ascertainability requirement has been met.

3

For the same reason, I reject the defendants’ argument that
the necessity for individualized inquiries concerning the harm
suffered by each proposed class member defeats the predominance
requirement of Rule 23(b)(3).
8

C.

Requirements of Rule 23(a)

Clough has also satisfied each of the requirements set
forth in Rule 23(a).
1.

Numerosity

Under Rule 23(a)(1), a class must be “so numerous that
joinder of all members is impracticable.”
23(a)(1).

Fed. R. Civ. P.

“No minimum number of plaintiffs is required to

maintain a suit as a class action, but generally if the named
plaintiff demonstrates that the potential number of plaintiffs
exceeds 40, the first prong of Rule 23(a) has been met.”
Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009)
(quoting Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir.
2001)).

The proposed class is comprised of 18,937 wireless

subscribers or users, which is more than adequate to satisfy the
numerosity requirement.
2.

Commonality

Rule 23(a)(2) requires that there be “questions of law or
fact common to the class.”

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

“[A]

single question of law or fact common to the members of the
class will satisfy the commonality requirement.”

Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 369 (2011) (internal
quotation marks omitted).

A question is common to the class if

it is “capable of classwide resolution — which means that the
determination of its truth or falsity will resolve an issue that
9

is central to the validity of each one of the claims in one
stroke.”

Id. at 350.

Common questions in this case that are capable of classwide
resolution include: (1) whether the text messages were sent to
cellular telephone numbers; (2) whether the equipment used to
send the text messages is an ATDS; (3) whether Revenue Frontier
is vicariously liable for the text messages; and (4) whether the
defendants willfully or knowingly violated the TCPA such that
the court may treble the statutory damages of $500 per claim.
These questions are central to a TCPA claim, see 47 U.S.C.
§ 227(b)(1)(A), and a class action has the capacity “to generate
common answers apt to drive the resolution of the litigation.”
See Dukes, 564 U.S. at 350 (internal quotation marks omitted).
The defendants contend that the commonality requirement
cannot be satisfied because “no information about the text
messages’ contents has been produced at all other than the
message Clough received.”

Doc. No. 97 at 10.

The defendants

suggest that unless each class member received an identical text
message, their claims cannot be common.

I disagree.

An

unsolicited text message sent to a cellular number using an ATDS
violates the TCPA regardless of its contents.
§ 227(b)(1)(A).

See 47 U.S.C.

What matters for commonality purposes is that

all class members received a message from the same entity
(Supreme Data) sent as part of the same campaign (tax debt
10

relief promotional campaign on behalf of NTE).

That the

contents of those messages may have varied is irrelevant for
purposes of TCPA liability. 4
3.

Typicality

Rule 23(a)’s typicality prong requires that “the claims or
defenses of the representative parties [be] typical of the
claims or defenses of the class.”

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

The claims of a class representative are “typical” when they
“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.”

Calderon, 570 F.3d at 460 (internal

quotation marks and alterations omitted).

By contrast, a class

representative’s claims are not typical “if they may be subject
to unique defenses that would divert attention from the common
claims of the class, or if factual differences predominate to
the extent where the court must make highly fact-specific or
individualized determinations in order to establish a
defendant’s liability to each class member.”

In re Tyco Int’l,

Ltd., 2006 DNH 091, 2006 WL 2349338, at *2 (D.N.H. Aug. 15,
2006) (internal quotation marks and citations omitted).

4

To the extent the defendants maintain that the contents of
the texts may be relevant to the issue of consent, I address
that argument in analyzing Rule 23(b)(3)’s predominance
requirement.
11

Clough’s claim is based on the same legal theory that
members of the putative class will use, namely that the
defendants violated the TCPA by sending an unauthorized autodialed text message to a wireless number.

In addition, the

class members’ claims arise from the same allegedly actionable
course of conduct for which Clough is seeking to recover,
because the complaint alleges that all text messages were sent
as part of the same advertising campaign, using the same dialing
software.

Finally, there are no significant factual differences

requiring individualized determinations.

The typicality

requirement is therefore satisfied.
4.

Adequacy

The adequacy requirement is satisfied if “the
representative parties will fairly and adequately protect the
interests of the class.”

Fed. R. Civ. P. 23(a)(4).

requirement has two prongs.

This

First, a plaintiff must demonstrate

“that the interests of the representative party will not
conflict with the interests of any of the class members.”
Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.
1985).

Second, a plaintiff must show “that counsel chosen by

the representative party is qualified, experienced and able to
vigorously conduct the proposed litigation.”

Id.

The defendants first argue that Clough is not an adequate
class representative because he lacks credibility.
12

They

maintain that Clough: (1) falsely stated under oath in his
interrogatory responses that he incurred charges for the text
message when in fact he had an unlimited text messaging plan;
(2) made false statements and feigned interest in NTE’s services
when he called the number that sent him the text message; and
(3) misrepresented his identity to other telemarketers.

These

instances of untruthful behavior purportedly damage Clough’s
credibility, which the defendants portray as a “central issue”
in the case.

See Doc. No. 97 at 4.

Courts may consider a proposed representative’s honesty and
trustworthiness in judging his adequacy.

CE Design Ltd. v. King

Architectural Metals, Inc., 637 F.3d 721, 727 (7th Cir. 2011);
Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998).
The general rule, however, is that attacks on a representative’s
credibility can render him inadequate only when they “are so
sharp as to jeopardize the interests of absent class members.”
Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 431 (6th
Cir. 2012) (internal quotation marks omitted); accord Lacy v.
Cook Cty., 897 F.3d 847, 866–67 (7th Cir. 2018).

Courts

applying this rule have found that the representative’s
credibility must be dubious with respect to substantial issues
directly relevant to the claims at issue.

See, e.g., Lacy, 897

F.3d at 866-67 (affirming district court’s determination that
class representatives were adequate where “any weaknesses in
13

[their] integrity did not relate to a central element of the
litigation”); CE Design, 637 F.3d at 727-28 (remanding for
district court to reconsider representative’s adequacy in action
alleging violation of TCPA where record raised serious doubts
concerning truthfulness of its principal on key question of
consent to receive faxed advertisements about which it now
complained); Savino, 164 F.3d at 87 (affirming district court’s
determination that lack of credibility rendered representative
inadequate where he offered differing accounts about “letters
that form[ed] the very basis for his lawsuit”); Kline v. Wolf,
702 F.2d 400, 403 (2d Cir. 1983) (affirming finding of
inadequacy where “plaintiffs’ testimony on an issue critical to
one of their two causes of action was subject to sharp attack”).
Although not trivial, Clough’s credibility issues do not
endanger the class because they are not directly relevant to his
TCPA claim.

Clough need not even testify to prove his claim.

Even if he does testify, whether he incurred charges for the
text message is not central to his claim.

As I explained above,

Clough’s injury stems from the invasion of his privacy that
resulted from the receipt of an unsolicited text message rather
than because he incurred a charge when the message was sent.
Similarly, that he made misrepresentations when talking to NTE
and other telemarketers after receiving the text message is not
relevant to his contention that the defendants sent him the text
14

message without his prior consent.

In short, “any weaknesses in

[his] integrity d[o] not relate to a central element of the
litigation” and thus do not render him an inadequate class
representative.

Lacy, 897 F.3d at 867.

The defendants challenge Clough’s adequacy on three other
grounds.

None of their arguments is persuasive.

First, the

defendants suggest that Clough “might not appear at trial if
called,” citing his deposition testimony.

Doc. No. 97 at 17.

A

fair reading of his testimony does not support the defendants’
characterization.

Clough testified that his work schedule might

prevent him from attending the entirety of a two-week trial, not
that he would fail to attend when called to testify.
No. 97-2 at 20-21.

See Doc.

Second, the defendants accuse Clough of

seeking to “feather[] his own nest,” citing his “history as a
TCPA complainant.”

Doc. No. 97 at 18.

This does not create a

conflict of interest between Clough and other class members.
See CE Design, 637 F.3d at 724 (“it’s not unlawful to be a
professional class action plaintiff”); Murray v. GMAC Mortg.
Corp., 434 F.3d 948, 954 (7th Cir. 2006) (“Nothing about the
frequency of Murray’s litigation implies that she is less suited
to represent others than is a person who received and sued on
but a single offer.”).
Finally, the defendants argue that Clough’s relationship
with Alex Washkowitz, one of his attorneys in this case, renders
15

Clough an inadequate class representative.

The two men are co-

workers who have an arrangement where, each time Clough receives
a telemarketing call or text, he informs Washkowitz, who then
finds responsible parties to target in demand letters and
lawsuits.

Although significant business or personal ties

between a representative and counsel may cast doubt on the
representative’s ability to put the interests of the class above
his counsel’s interests, the record does not support the
defendants’ contention that the relationship here rises to that
level.

Cf. London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1255

(11th Cir. 2003) (“combined with their close friendship, the
former financial relationship between [representative] and
[class counsel] creates a potential conflict of interest”);
Susman v. Lincoln Am. Corp., 561 F.2d 86, 95 (7th Cir. 1977)
(representative whose brother was class counsel found inadequate
because of “the possibility that one so situated will become
more interested in maximizing the ‘return’ to his counsel than
in aggressively presenting the proposed class’ action”)
(internal quotation marks omitted); Gordon v. Caribbean Cruise
Line, Inc., No. 14-cv-5848, 2019 WL 498937, at *9 (N.D. Ill.
Feb. 8, 2019) (finding representative, who was lawyer by trade,
inadequate where he and class counsel jointly represented class
action plaintiffs in multiple matters, shared office space,

16

receptionist, and fax machine, and their families socialized
together).
In sum, none of the defendants’ attacks on Clough’s
adequacy to represent the interests of the class have merit.
Based on the transcript of his deposition, I am satisfied that
Clough is sufficiently involved in litigating this case and
cognizant of the claims and issues to serve as the class
representative.

See In re Tyco, 2006 WL 2349338, at *2

(“[I]ndividuals should not serve as class representatives if
they possess ‘so little knowledge of and involvement in the
class action that they [are] unable or unwilling to protect the
interests of the class against the possibly competing interests
of the attorneys.’”) (quoting Kirkpatrick v. J.C. Bradford &
Co., 827 F.2d 718, 727 (11th Cir. 1987)).
The defendants also argue that the four law firms
representing Clough are not adequate to serve as class counsel.
Their principal argument is that Clough’s attorneys have not
been diligent in prosecuting the case, citing their failure to
take depositions as an example.

The discovery period is still

open, however, and I have no reason to doubt Clough’s counsel’s
contention that they will diligently pursue all necessary
discovery in the remaining time.
request to serve as class counsel.

Accordingly, I grant their

17

D.

Requirements of Rule 23(b)(3)

In analyzing the predominance and superiority requirements
of Rule 23(b)(3), the First Circuit has instructed that the
“class certification prerequisites should be construed in light
of the underlying objectives of class actions.”
F.3d at 41.

Smilow, 323

“The core purpose of Rule 23(b)(3) is to vindicate

the claims of consumers and other groups of people whose
individual claims would be too small to warrant litigation.”
Id.

I agree with Clough that questions common to the class

predominate and that a class action is the superior method of
resolving this dispute.
1.

Predominance

For a court to certify a class pursuant to Rule 23(b)(3),
the rule “requires merely that common issues predominate, not
that all issues be common to the class.”
39.

Smilow, 323 F.3d at

The rule “does not require a plaintiff seeking class

certification to prove that each element of her claim is
susceptible of classwide proof.”

In re Nexium, 777 F.3d at 21

(quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.
455, 469 (2013)).

Instead, the inquiry is “whether there is

‘reason to think that [individualized] questions will overwhelm
common ones and render class certification inappropriate.”

Id.

(quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.
258, 276 (2014)).
18

Here, the common issues as to both liability and damages
discussed above predominate over any questions affecting only
individual class members.

In fact, every element of the class’s

TCPA claim is susceptible to classwide proof.
§ 227(b)(1)(A).

See 47 U.S.C.

All class members received text messages sent

by the same entity, using the same dialing software, as part of
the same advertising campaign.

The amount of each class

member’s damages does not require individualized determination,
given that the complaint seeks statutory damages of $500 per
violation, which may be trebled if the defendants acted
“willfully or knowingly.”

See id. § 227(b)(3).

Nor does the possibility that the defendants may assert a
consent defense preclude a finding of predominance.

“Express

consent is not an element of a [TCPA] plaintiff’s prima facie
case but is an affirmative defense for which the defendant bears
the burden of proof.”

Van Patten, 847 F.3d at 1044; see Latner

v. Mount Sinai Health Sys., Inc, 879 F.3d 52, 54 (2d Cir. 2018);
Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2017).
Although courts should consider affirmative defenses in making
class certification decisions, “[c]ourts traditionally have been
reluctant to deny class action status under Rule 23(b)(3) simply
because affirmative defenses may be available against individual
members.”

Smilow, 323 F.3d at 39.

19

The defendants produced no evidence of consent for any
proposed class member in response to Clough’s discovery
requests.

To the extent the defendants suggest that the

contents of the text messages are relevant because they may show
that some class members provided prior consent, such
“speculation and surmise [cannot] tip the decisional scales in a
class certification ruling.”

Waste Mgmt. Holdings, Inc. v.

Mowbray, 208 F.3d 288, 298 (1st Cir. 2000).

Unless a defendant

points to evidence of consent, courts do not presume that
resolving the issue requires individualized inquiries.

See

Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1042
(9th Cir. 2012); Bee, Denning, Inc. v. Capital All. Grp., 310
F.R.D. 614, 629 (S.D. Cal. 2015); Kristensen v. Credit Payment
Servs., 12 F. Supp. 3d 1292, 1307 (D. Nev. 2014).

In any event,

if evidence later shows that “an affirmative defense is likely
to bar claims against at least some class members, then a court
has available adequate procedural mechanisms.

For example, it

can place class members with potentially barred claims in a
separate subclass, or exclude them from the class altogether.”
Smilow, 323 F.3d at 39–40 (citations omitted).
2.

Superiority

Rule 23(b)(3) provides four non-exhaustive factors that are
relevant to the superiority inquiry: (1) “the class members’
interest in individually controlling the prosecution or defense
20

of separate actions;” (2) “the extent and nature of any
litigation concerning the controversy already begun by or
against class members;” (3) “the desirability or undesirability
of concentrating the litigation of the claims in the particular
forum;” and (4) “the likely difficulties in managing a class
action.”

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

All four non-exclusive factors point to a finding that a
class action is the superior method for adjudicating this case.
It does not appear that individual litigation has been initiated
to adjudicate these claims, and given that the statutory damages
may not exceed $1,500 per claim, “individual class members have
virtually no interest in individually controlling the
In re Hannaford Bros., 293

prosecution of separate actions.”
F.R.D. 21, 33–34 (D. Me. 2013).

In addition, no forum concerns

have been brought to my attention, and there is no evidence that
this action will be more difficult to manage than any other
class action.

Consequently, given the large number of potential

class members and the small value of individual claims, “not
only is a class action the superior method of resolving this
case, it is the very sort of case for which the Rule 23(b)(3)
class action mechanism was intended.”
57.

21

In re Dial, 312 F.R.D. at

IV.

CONCLUSION

In summary, Clough has standing to sue and the proposed
class satisfies the requirements of Rule 23.

Accordingly,

Clough’s motion for class certification (Doc. No. 91) is
granted.

Clough is appointed as lead plaintiff and his counsel

as lead counsel.
SO ORDERED.
/s/ Paul Barbadoro
Paul Barbadoro
United States District Judge
June 19, 2019
cc:

Alex M. Washkowitz, Esq.
Edward A. Broderick, Esq.
Jeremy A. Cohen, Esq.
Matthew P. McCue, Esq.
Roger B. Phillips, Esq.
Ari N. Rothman, Esq.
Daniel S. Blynn, Esq.
Justin B. Nemeroff, Esq.
Shahin O. Rothermel, Esq.
Arnold Rosenblatt, Esq.
Kathleen M. Mahan, Esq.

22