George v. Shamrock Saloon II LLC et al

Filing 94

ORDER ADOPTING REPORT AND RECOMMENDATION adopting 85 Motion for Report and Recommendations, filed by John L. Sullivan, Shamrock Saloon II LLC, Blitz Marketing, LLC, 57 Motion to Certify Class filed by Meghan George, 84 Report and Rec ommendations. Accordingly, the Court adopts Judge Pitman's recommendation and grants Plaintiff's motion for class certification. The Clerk of Court is respectfully directed to lift the stay in this matter and terminate the motion s pending at docket entries 57 and 85. No later than February 14, 2020, the parties shall submit a joint letter to the Court regarding proposed next steps, including whether a referral to Magistrate Judge Cave or to the district's mediation program for settlement discussions would be useful at this time. (Signed by Judge Ronnie Abrams on 1/13/2020) (mro)

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1·soC-SDNY
DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRO~ICALLY FILED

noc #: _ _ _-,..---,--::--MEGHAN GEORGE, on behalf of herself
and all others similarly situated,
Plaintiff,
No. 17-CV-6663 (RA)

V.

SHAMROCK SALOON II LLC, doing
business as CALICO JACK'S CANTINA;
BLITZ MARKETING, LLC; JOHN L.
SULLIVAN; and DOES 1 THROUGH 20
inclusive, and each of them,

ORDER ADOPTING
REPORT AND RECOMMENDATION

Defendants.

RONNIE ABRAMS, United States District Court Judge:
Plaintiff, on behalf of herself and others similarly situated, brings this action against
Defendants Shamrock Saloon II LLC, doing business as Calico Jack's Cantina ("Calico Jack's"),
Blitz Marketing, LLC, John L. Sullivan, and Does 1 through 20. She alleges that Defendants
violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., by sending
dozens of text messages advertising events and specials at Calico Jack's to her cell phone
number without her consent using an automated telephone dialing system ("ATDS"). Plaintiff
moved for an order certifying a class pursuant to Federal Rule of Civil Procedure 23.
Before the Court is Magistrate Judge Pitman's Report and Recommendation ("Report"),
dated August 7, 2019, recommending that the Court grant Plaintiffs motion. Specifically, the
Report recommends that the Court certify a class "consisting of the 67,630 individuals (1) to
whom defendants sent promotional text messages between March 26, 2015 and September 1,
2017 using an automated dialing system and (2) from whom defendants cannot affirmatively

show that they received prior express written consent to receive such text messages." Rpt. at
IO.'
On August 21, Defendants filed their objections to the Report. Plaintiff responded on
September 25. The Court assumes the parties' familiarity with the facts, as outlined in the
Report. After reviewing the Report and objections, the Court adopts Judge Pitman's wellreasoned recommendation in its entirety and grants Plaintiff's motion to certify the class.

LEGAL STANDARDS
When a magistrate judge issues a report and recommendation, the district court "may
accept, reject, or modify, in whole or in part, the findings or recommendations made [therein]."
28 U.S.C. § 636(b)(l)(C). "When a timely and specific objection to a report and
recommendation is made, the Court reviews de novo the portion of the report and
recommendation to which the party objects." Tagliaferri v. United States, No. 17-CV-3026
(RA), 2019 WL 498361, at *1 (S.D.N.Y. Feb. 8, 2019); see also Time Square Food Imps. LLC v.

Philbin, No. 12-CV-9101 (PAE), 2014 WL 521242, at *2 (S.D.N.Y. Feb. 10, 2014) (requiring
objections to be "specific and clearly aimed at particular findings in the magistrate judge's
report"). Portions of a report not subject to a proper objection are reviewed for clear error. See

Razzoli v. Fed. Bureau of Prisons, No. 12-CV-3774 (LAP), 2014 WL 2440771, at *5 (S.D.N.Y.
May 30, 2014). "[T]o the extent ... that the party makes only conclusory or general arguments,
or simply reiterates the original arguments, the Court will review the [report and
recommendation] strictly for clear error." IndyMac Bank, FS.B. v. Nat'! Settlement Agency,

Inc., No. 07-CV-6865 (LTS), 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008).

1

The opinion uses the following citations: "Rpt." for Judge Pitman's Report; "Defs.' Obj." for Defendants'
objections to the Report; "Pl.'s Obj. Reply'' for Plaintiffs response to Defendants' objections; "Defs.' Opp." for
Defendants' underlying opposition brief to Plaintiffs class certification motion; "Pl.'s Reply" for Plaintiffs reply
brief to Defendants' underlying opposition brief; and "Expert Rpt." for Plaintiffs expert report.

2

Before granting a class certification motion - as is the subject of Judge Pitman's Report
"a court must ensure that the requirements of Rule 23(a) and (b) have been met." Denney v.
Deutsche Bank AG, 443 F.3d 253,270 (2d Cir. 2006). Rule 23(a) has four prerequisites:
numerosity, commonality, typicality, and adequacy ofrepresentation. See Fed. R. Civ. P. 23(a).
"[A]ctual, not presumed, conformance with Rule 23(a) remains ... indispensable." General Tel.
Co. o/Sw. v. Falcon, 457 U.S. 147, 160 (1982). "If the Rule 23(a) criteria are satisfied, an action
may be maintained as a class action only if it also qualifies under at least one of the categories
provided in Rule 23(b)." Levitt v. J.P. Morgan Sec., Inc., 710 F.3d 454,464 (2d Cir. 2013). As
relevant here, Rule 23(b )(3) provides "two additional requirements": "predominance, i.e., law or
fact questions common to the class predominate over questions affecting individual members,
and superiority, i.e., class action is superior to other methods." In re Pub. Offerings Sec. litig.,
471 F.3d 24, 32 (2d Cir. 2006). The party seeking certification must prove these requirements by
a preponderance of the evidence. See Teamsters Local 445 Freight Div. Pension Fund v.
Bombardier Inc., 546 F.3d 196,202 (2d Cir. 2008).
DISCUSSION

Defendants timely raised three objections to the Report. Two of the objections are new
arguments against class certification that were not presented to Judge Pitman. The third
objection reiterates an argument that Defendants made in their underlying brief opposing class
certification and was addressed by Judge Pitman. For reasons explained below, the Court does
not consider Defendants' first two objections, reviews the third objection for clear error, and
evaluates the remainder of Judge Pitman's Rule 23 findings, to which Defendants did not object,
also for clear error.

3

I.

Defendants' Objections to the Report
A. Two Newly Raised Arguments Against Class Certification
"(W]hether a party may raise a new legal argument ... for the first time in objections to

(a magistrate judge's report and recommendation] has not yet been decided in this Circuit." Levy

v. Young Adult Inst., Inc., 103 F. Supp. 3d 426,433 (S.D.N.Y. 2015). As such, courts in this
circuit address this issue in one of two ways. Some courts hold that "new arguments and factual
assertions cannot properly be raised for the first time in objections to the R&R, and indeed may
not be deemed objections at all." Tara/av. Artus, No. 10-CV-3870 (AJN), 2013 WL 3789089, at
*2 (S.D.N.Y. July 18, 2013); see also Cabrera v. Schafer, No. 12-CV-6323, 2017 WL 1162183,
at *2 (E.D.N.Y. Mar. 27, 2017). The reasoning is that reviewing arguments for the first time at
this late stage "would negate efficiencies gained through the Magistrates Act and would permit
litigants to change tactics after the issuance of an R&R." Amadasu v. Ngati, No. 05-CV-2585
(R.R.\1), 2012 WL 3930386, at *5 (E.D.N.Y. Sept. 9, 2012). Other courts consider six factors in
determining whether to exercise their discretion and address a newly-raised argument:
(1) the reason for the litigant's previous failure to raise the new legal argument; (2) whether
an intervening case or statute has changed the state of the law; (3) whether the new issue is a
pure issue oflaw for which no additional fact-finding is required; (4) whether the resolution
of the new legal issue is not open to serious question; (5) whether efficiency and fairness
militate in favor or against consideration of the new argument; and (6) whether manifest
injustice will result if the new argument is not considered.

Parks v. Comm'r ofSoc. Sec., No. 15-CV-6470 (ER), 2017 WL 3016946, at *3 (S.D.N.Y. July
17, 2017).
In their objections to the Report, Defendants challenge Plaintiffs expert's findings for
the first time. With full access to Defendants' Call Fire account (through which Defendants store
collected phone numbers and draft and schedule mass text message promotional campaigns), the
expert found that 67,630 unique cell phone numbers received text messages between March 26,
4

2015 and September 1, 2017 from Defendants without consent provided "in the handwritten
sheets completed by customers at the restaurant ... [or] on the website content list." Expert Rpt.

Jrlr 55. Furthermore, before Judge Pitman, "both sides appear[ed] to agree that [D]efendants' text
messages contained 'advertisements' as defined by the FCC." Rpt. at 7 n.1. 67,630 was thus
proposed - and adopted

as the scope of the class.

Now, however, Defendants claim that they never agreed that all 67,630 individuals
received messages with an advertisement. Instead, "absolutely ... not conced[ing] that every
single text that was sent using the Call Fire platform ... qualify as 'advertisements' under the
TCPA," they assert that only those individuals on their General Mailing List - a number about
half the size of the proposed class - received text messages with an advertisement. Defs.' Obj. at
16. Defendants, therefore, contend that the Report erred in "conclud[ing] that there were 67,630
individuals who received the text message promotions sent to Plaintiff between March 26, 2015
and September 1, 2017." Id.; see also id. at 8 ("[T]he discrepancy between the actual number of
individuals who were on the General Mailing List and the number asserted by Hansen was,"
according to Defendants, "due to Hansen's inclusion in all contact numbers - on any list-within
the Call Fire database.").
Yet, despite the fact that the expert report was available to Defendants prior to and during
initial briefing, Defendants never before questioned the expert's findings or whether the text
messages included an advertisement. Nor did Defendants' 30(b)(6) witness, in her deposition,
ever address this alleged distinction between individuals on the General Mailing List and other
lists. Notably, Plaintiffs reply brief to Defendants' underlying opposition brief even noted that
"Defendants do not contest the numbers." Pl.'s Obj. Reply at 3. It is, therefore, unclear to the
Court why Defendants did not previously raise this if the "distinction is [as] important" as they

5

now assert. Defs.' Obj. at 6. This is particularly so given that Defendants agreed to give
Plaintiffs expert full access to their Call Fire account and stipulated to the authenticity of that
information in order to avoid a second 30(b )(6) deposition. See Dkt. 56 (Stipulation & Order
Regarding the Authenticity of Defendants' Call Fire Records). 2
Defendants' second new argument is that they do not need to prove "prior express written
consent" with documentary evidence because witness testimony is sufficient. Defendants
primarily cite Pamela Killian's 30(b)(6) deposition, in which she testified that Defendants
obtained customers' cell phone numbers via only two methods: sign-up sheets circulated in the
bar and their website. Relying on a single case from the Western District of Ohio, Defendants
now claim this testimony is sufficient to establish consent. See Defs.' Obj. at 21-22 (citing
Sawyer v. KRS Biotechnology Inc., No. 16-CV-550, 2018 WL 2425780 (W.D. Ohio May 30,
2018)). Defendants, however, did not previously argue that relying solely on witness testimony
was adequate proof, perhaps because Ms. Killian testified that she had never personally used Call
Fire and thus offered little insight into Defendants' messaging. 3 See Killian Dep. 34: 14-17.
Ultimately, the Court takes no position on whether a new argument first raised in
objections to a magistrate judge's report and recommendation can ever be considered. Here,
even applying the six-factor test used by some courts, Defendants' two new arguments against
class certification do not warrant review. Defendants could have raised each of these arguments

2

Even if the Court were to consider Defendants' argument regarding the number of individuals who
received promotional texts during the class period, it would fail. To dispute the expert's finding, Defendants
submitted three screenshots of the General Mailing List to prove it had less than 67,630 individuals on it. See Defs.'
Obj., Ex. F, G, H. These screenshots, however, offer no insight into the content of the messages that anyone on the
General Mailing List or any other mailing list received. Moreover, the submitted screenshots are from August 7,
2018, and thus not even accurate reflections of the mailing lists during the proposed class period. See Dkt. 85, Ex. A
(Declaration of Vincent A very).
3
Moreover, Sawyer - the single case that Defendants rely on addresses a different TCPA provision
involving junk fax violations, which, unlike the TCPA provision applicable here, does not require written consent.
See 47 U.S.C. § 227(b)(l)(C).

6

in their underlying briefing. They have not explained why they did not so. Notably, neither
argument relies on intervening law or evidence. Moreover, Defendants' argument regarding the
expert report would require additional fact-finding about the text messages sent by Call Fire
during the proposed class period. Because the parties have engaged in discovery after which
Judge Pitman issued a detailed Report, neither "efficiency [nor] fairness militate in favor ... [ofJ
consideration of the new argument." Parks, 2017 WL 3016946, at *3. To consider either now
"would negate efficiencies gained through the Magistrates Act and ... permit [Defendants] to
change tactics after the issuance of [the] R&R." Amadasu, 2012 WL 3930386, at *5 (citation
omitted).
Accordingly, these arguments "may not be deemed objections at all." 3 W 16th St., LLC

v. Commonwealth Land Title Ins. Co., No. 18-CV-1914 (AT), 2019 WL 1397135, at *2
(S.D.N.Y. Mar. 28, 2019). 4

B. Previously Raised Argument Against Class Certification
In their objections, Defendants contend that, "to the extent Magistrate Pitman's
recommendation that class certification is warranted was based on his conclusion that 'there is no
need for an individualized inquiry concerning the issue of consent,' it was mistaken." Defs.'
Obj. at 16 (internal citation omitted). According to Defendants, because Plaintiff
"acknowledge[ s] ... that she had been receiving promotional texts regarding Calico Jack's
events prior to 2013," her "claim is evaluated under the old standard," not the "prior express
written consent" standard established in the FCC's 2012 Order. 5 Id. at 13. Judge Pitman erred,

4

Defendants may, however, use Ms. Killian's testimony should they choose to raise consent as an
affrrmative defense after the class is certified.
5
Because Judge Pitman already detailed the TCPA's structure and the FCC's governing regulations, the
Court will not repeat it here in detail. See Rpt. at 4-7. In brief, however, the FCC has interpreted the TCPA to
extend to text messages. See Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 88 (2d Cir. 2019). Prior to the
FCC's 2012 Order, the FCC required "prior express consent" before sending a text message with an

7

they say, in finding "that consent obtained prior to the effective date of the FCC's 2013 Order
was invalidated by the Order, itself."6 Id. at 13; see also id at 14 ("[Judge Pitman's] conclusion
is based on the assumption that the 2013 FCC Order effectively invalidated all existing consents
received by Calico Jack's prior to the Order's effective date[.]").
But this argument was the focus of Defendants' underlying opposition brief. In
contesting whether either typicality or predominance could be established, Defendants argued:
Plaintiff is attempting to certify a class of individuals based on evidence that applies to a
particular legal standard for determining whether or not a customer provided 'express
consent' to send him/her promotional text messages except, unfortunately for Plaintiff,
that particular standard does not apply to her own individual claim, as it was not in effect
at the time defendants obtained her number and began sending her the promotional texts
in question.
Defs.' Opp. at 1. Defendants thus urged that Plaintiff's claim is not typical of the class
members' claims because "her individual TCPA claim must be adjudicated under a 'prior
express consent' standard, rather than the more stringent 'prior express written consent'
standard." Rpt. at 11. In that same vein, Defendants suggest that predominance could not be
met "because individual issues with respect to whether each class member gave the requisite
consent to receive text messages would require an individual analysis of each class member's
claim." Id.
Because Defendants raised this argument before Judge Pitman, the Court reviews it here
for clear error. See Indyl'vfac Bank, F.S.B., 2008 WL 4810043, at* 1 ("[T]o the extent ... that the
party ... simply reiterates the original arguments, the Court will review [it] strictly for clear

"advertisement." But since the FCC's 2012 Order took effect on October 16, 2013, a text message with an
"advertisement" requires "prior express written consent." See 47 C.F.R. § 64.l200(a)(2) (emphasis added); see also
Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835, 843•44 (S.D.N.Y. 2017).
6
References here to the FCC's 2012 and 20 l3 Orders are to the same order. The FCC issued the relevant
order in February 2012, but it did not take effect until October 2013. See 47 C.F.R. § 64.1200(f)(8) (defining "prior
express written consent").

8

error."). After review, the Court finds no clear error in Judge Pitman's determination that the
"prior express written consent" standard established in the FCC's 2012 Order applies to
Plaintiffs claim, and that Plaintiff thus can prove typicality and predominance.
The FCC's 2012 Order applies to Plaintiffs claim because, even though Defendants
obtained her number prior to the Order, the relevant text messages were sent to Plaintiff after it
took effect. Other courts have reached the same conclusion. In Larson v. Harman 1\fanagement
Corporation, for instance, the court was presented with similar facts. The defendants obtained

the plaintiffs number in 2012, under circumstances that would have satisfied the FCC's prior
(and then-applicable) consent standard. Larson, No. 16-CV-00219, 2016 WL 6298528, at* 1
(E.D. Cal. Oct. 27, 2016). The defendants, however, continued to send the text messages
through 2016-that is, after the FCC's 2012 Order took effect. Rejecting the defendants'
argument that the FCC's 2012 Order was "inapplicable to this lawsuit," the court reasoned that
"the TCPA applies to each 'call' made, rather than the date upon which an alleged marketing
campaign began." Id. at *3 n.1. Therefore, "[b]ecause at least some of the allegedly violative
text messages were received in 2014 ... the FCC's new rules, promulgated in 2013, are
applicable to this case." Id.
Likewise, in Lennartson v. Papa 1Hurphy 's Holdings, Inc., the plaintiff had registered in
2012 on the defendant's website to receive promotional text messages, but continued to receive
messages through 2015. No. 15-CV-5307, 2016 WL 51747, at *1 (W.D. Wash. Jan. 5, 2016).
The plaintiff argued that, as to any texts sent after October 16, 2013, the defendant was not in
compliance with the FCC's 2012 Order because the Order "did not grandfather existing written
consents that did not meet the definitional requirements of 'prior express written consent."' Id.
at *3. Agreeing with the plaintiff, the Court noted that "Papa Murphy's did not follow the 2012

9

Order's requirements, nor did it petition the FCC for clarification or relief," and as such "failed
to comply with the 2012 Order." Id. at *3-4; see also Snyder v. iCard Gift Card, LLC, No. 15CV-61718, 2016 WL 7507994, at *6 (S.D. Fla. May 16, 2016) (holding that, although the
defendants obtained the plaintiff's number in May 2013, they did not have consent to text the
plaintiff in 2015 because the consent standard depends on when the text was sent). 7
In addition to this case law, the FCC's orders provide guidance. The FCC's 2012 Order
directly addressed when the change to the consent standard would take effect. It implemented a
twelve-month "safe harbor" period to "allow[] a reasonable time for affected parties to
implement necessary changes in a way that makes sense for their business models." FCC Report
& Order lr 66, In the Matter of Rules and Regulations Implementing the Telephone Consumer

Protection Act of 1991 (Feb. 15, 2012). Then, in 2015, after several organizations sought "relief
from or clarification of the prior-express-written-consent rule that became effective October 16,
2013," the FCC issued a follow-up order addressing whether the FCC's 2012 Order "nullif[ied]
those written express consents already provided by consumers before that date." FCC
Declaratory Ruling & Order !r 98, In the Matter of Rules and Regulations Implementing the

7

Other district courts have also held that whether the FCC' s 2012 Order governs depends on when the text
was received, not when the individual's number was obtained. This is best illustrated in how district courts have
recently defined the scope of proposed TCPA classes. See, e.g., Trenz v. On-line Adm'rs, Inc., No. 15-CV-8356,
2017 WL 6539019, at *2 (C.D. Cal. Sept. 25, 2017) (splitting the class into two groups - those who received calls
"Pre-October 16, 2013" and those who received calls "Post-October 16, 2013"); Meyer v. Bebe Stores, Inc., No. 14CV-267, 2016 WL 8933624, at* 12 (N.D. Cal. Aug. 22, 2016) (defining a TCPA class as "[a]ll persons within the
United States who provided their mobile telephone number to bebe in one ofbebe's stores at the point-of-sale and
were sent an SMS or text message from bebe during the period of time beginning October 16, 2013 and continuing
until the date the Class is certified, who were not members of Club bebe during the Class Period"); see also
Walintukan v. SBE Entm 't Grp., LLC, No. 16-CV13 l I, 2017 WL 635278, at *3 (N.D. Cal. Feb. 15,2017) (referring
to October 16, 2013 as "the date when the definition of consent under the TCP A was reinterpreted to create a higher
threshold for consent").
In arguing that the prior standard applies to Plaintiffs claim, Defendants rely on a single case from the
Central District of California, which "held that an individual's decision to provide his/her cellphone number in
writing for the specific purpose of seeking promotional text messages satisfies the more stringent 'prior written
consent' standard under the 2013 FCC Order, because in such cases, it is the customer who is seeking such
promotional text messages to begin with." Defs.' Obj. at 14 (relying on Pietzak v. Microsoft Corp., No. 15-CV5527, 2015 WL 7888408 (C.D. Cal. Nov. 17, 2015)). In light of the other case law, the FCC's clear requirement for
"prior express written consent," and Pietzak's limited analysis, the Court does not find this case persuasive.

10

Telephone Consumer Protection Act of 1991 (July 10, 2015). 8 In unambiguous terms, the FCC
stated: "It follows that the rule applies per call and that telemarketers should not rely on a
consumer's written consent obtained before the current rule took effect if that consent does not
satisfy the current rule." Id.

Jr I 00.

Judge Pitman, therefore, correctly concluded that it is irrelevant that Defendants obtained
Plaintiff's number prior to the FCC's 2012 Order. Because this action concerns only the
messages sent to Plaintiff after that Order took effect, the relevant issue is solely whether
Defendants had the consent required in the FCC's 2012 Order to message Plaintiff. 9
With only one consent standard applicable to both Plaintiffs and the putative class
members' claims, Judge Pitman rightly found typicality and predominance satisfied. "To
establish typicality under Rule 23(a)(3), the party seeking certification must show that 'each
class member's claim arises from the same course of events and each class member makes
similar legal arguments to prove the defendant's liability."' In re Flag Telecom Holdings Ltd.,

Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (citation omitted). Here, that is true. A single inquiry
applies to the entire class: whether Defendants sent the 67,630 people a text message between
March 26, 2015 and September 1, 2017 using an ATOS without receiving consent in accordance
with the FCC's 2012 order. It was certainly not clear error, therefore, to conclude that "the

8

"The FCC's 2015 Order clarified its 2012 Order. The 2015 consent requirements were not an abrupt shift
in the law, but rather, an affirmation ofa rule articulated three years earlier [in the 2012 Order]." Lennartson, 2016
WL 51747, at *3.
9

Even if the Court agreed with Defendants' argument about what consent standard apply, it would still fail
under clear error review. Defendants have not established that they ever received consent - written or oral from
Plaintiff prior to the FCC's 2012 Order, and thus it would make no difference what consent standard applied.
Plaintiff, by contrast, has presented evidence that Defendants never obtained her consent. The expert report, for
instance, identifies her number among a list of 67,630 numbers who were contacted without consent provided "in
the handwritten sheets completed by customers at the restaurant ... [or] on the website content list." Expert Rpt. ,r
55. While Defendants dispute the plausibility of the expert's findings, they only surmise that they obtained
Plaintiffs number from her or a friend while she was at a neighboring bar one evening in 2007. See Defs.' Obj. at
5-6. This allegation alone does not discredit the expert report or Plaintiff's testimony that Defendants contacted her
without any consent.

11

named plaintiffs claim and the class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their absence." Sykes v. Mel S. Harris &
Assocs. LLC, 780 F.3d 70, 80 (2d Cir. 2015). Moreover, although "[t]he commonality and
typicality requirements tend to merge into one another," Marisol A. v. Giuliani, 126 F.3d 372,
376 (2d Cir. 1997), Defendants have not objected to Judge Pitman's conclusion that Plaintiff
demonstrated commonality.
The Court also finds no clear error in Judge Pitman's predominance finding. Class-wide
issues predominate "if resolution of some of the legal or factual questions that qualify each class
member's case as a genuine controversy can be achieved through generalized proof." Mazzei v.
Money Store, 829 F.3d 260,272 (2d Cir. 2016). "[l]ndividual questions need not be absent," but
"[t]he rule requires only that those questions not predominate over the common questions
affecting the class as a whole." Sykes, 780 F.3d at 81. The purpose of this inquiry is to ensure
that "proposed classes are sufficiently cohesive to warrant adjudication by representation."
Amchem Prods., Inc. v. Windsor, 521 U.S. 591,623 (1997).
Before Judge Pitman, Defendants argued that the class should not be certified because
individualized inquiries into (1) whether a class member gave consent and, if so, (2) what
consent standard applied, would predominate. But as Judge Pitman noted, "Defendants'
argument is predicated on the assumption that the court would need to apply the pre-2013
express consent standard to some class members and the more stringent prior express written
consent standard to other class members." Rpt. at 21-22. This "assumption," the Court
reiterates, is incorrect. Id.
"There is," therefore, "no need for an individualized inquiry concerning the issue of
consent." Id. at 23. The proposed class was purposefully defined to avoid individualized

12

inquiries by only including individuals who were contacted by Defendants after the FCC's 2012
Order. Moreover, Defendants have not offered any affirmative evidence - despite already
engaging in discovery - that casts doubt on Plaintiff's assertion that they lacked consent from
any of the putative class members. See id. at 25 (finding Defendants' contention that it had
consent from some putative class members "too speculative to defeat a finding of
predominance"); see also Trenz, 2017 WL 6539019, at *8 (certifying a TCP A class over the
defendants' objection to predominance because "[t]he Court ... need[s] significantly more
evidence from Defendants in order to find that these potential individualized inquiries actually
predominated over the common questions").
With one consent standard applicable to the whole class, only a generalized inquiry as to
consent would be necessary. Predominance is therefore established. See e.g., Allard v. SCI

Direct, Inc., No. 16-CV-1033, 2017 WL 3236448, at *5 (M.D. Tenn. July 31, 2017) ("[W]hether
[the defendant] had a practice of obtaining consent in a way sufficient to satisfy 'prior express
written consent' is a common question that predominates in this action."); Zeidel v. A&M, LLC,
No. 13-CV-6989, 2017 WL 1178150, at *5 (N.D. Ill. Mar. 30, 2017) ("Common questions of
law and fact related to Defendant's alleged uniform practice of sending substantially similar text
messages to the class members ... and alleged lack of written consent predominate over any
individualized issues.").
II.

Judge Pitman's Remaining Rule 23 Findings

Defendants have not objected to the Report's recommendation that the other Rule 23
requirements are met. The Court, therefore, reviews them for clear error. See Razzoli, 2014 WL
2440771, at *5.

13

A. Rule 23(a)
The Court previously addressed typicality. It now considers Judge Pitman's conclusion
that numerosity, commonality, and adequacy are also met.

i.

Numerosity

Judge Pitman concluded that numerosity was established because Plaintiff identified
67,630 putative class members. "The numerosity requirement provides that the class must be 'so
numerous thatjoinder of all members is impracticable."' Brown v. Kelly, 609 F.3d 467,475 (2d
Cir. 2010) (citing Fed. R. Civ. P. 23(a)(l)); see also Consol. Rail Corp. v. Town of Hyde Park,
4 7 F .3d 4 73, 483 (2d Cir. 1995) ("[N]umerosity is presumed at a level of 40 members."). Such a
large putative class easily satisfies Rule 23(a).

ii.

Commonality

Commonality "require[ sJa plaintiff to show that 'there are questions of law or fact
common to the class."' Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,349 (2011) (quoting Fed.
R. Civ. P. 23(a)(2); Jackson v. Bloomberg L.P., 298 F.R.D. 152, 162 (S.D.N.Y. 2014) ("[A]
single common legal or factual question will suffice."). Generally, a plaintiff must "demonstrate
that the class members have suffered the same injury." Jackson, 298 F.R.D. at 162; see also

Lizondro-Garcia v. Kefi LLC, 300 F.R.D. 169, 175 (S.D.N.Y. 2014) ("[P]laintiffs may meet the
commonality requirement where the individual circumstances of class members differ, but 'their
injuries derive from a unitary course of conduct by a single system."' (citation omitted)). This
inquiry "depend[s] upon a common contention ... 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." Dukes, 564 U.S. at 350.

14

The Court agrees that Plaintiff established commonality. Both common facts - that
Defendants sent promotional texts to the individual class members using an ATDS - and law whether Defendants had the requisite consent - are present. See Johnson v. Nextel Commc 'n,
Inc., 780 F .3d 128, 13 7 (2d Cir. 2015) ("Where the same conduct or practice by the same
defendants gives rise to the same kind of claims from all class members, there is a common
question."). Moreover, each class member "suffered the same injury - the receipt of unwanted
promotional text messages." Rpt. at 13. Although the putative class members' factual
circumstances might differ slightly, such as in the number of texts an individual received, there is
a "unifying thread among the members' claims that warrant[s] class treatment." Johnson v.
Nextel Commc'n, Inc., 293 F.R.D. 660,670 (S.D.N.Y. 2013).
iii.

Adequacy

Rule 23(a) also requires establishing adequacy of representation, meaning that
"representatives will fairly and adequately protect the interests of the class." Amchem Prods.,
Inc., 521 U.S. at 613. This inquiry seeks to uncover whether "the proposed class representative .
. . h[ as] an interest in vigorously pursuing the claims of the class, and ... h[ as] no interests
antagonistic to the interests of other class members." In re Literary Works in Elec. Databases
Copyright Litig., 654 F.3d 242,249 (2d Cir. 2011). It also considers whether "plaintiff's
attorneys are qualified, experienced and able to conduct the litigation." In re Flag Telecom
Holdings, 574 F.3d at 35.
At no point in this litigation have Defendants disputed the adequacy of Plaintiff's counsel
or Plaintiff's ability to represent the putative class. Judge Pitman also did not identify any
conflict between Plaintiff and the class, and deemed Plaintiff's counsel qualified based on his

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"detailed outline of his qualifications and experiences" as counsel for previous class and TCPA
actions. Rpt. at 18; see also Kristensen Deel. Jr 24-35.

iv.

Ascertainability

The Second Circuit has "recognized an 'implied requirement of ascertainability' in Rule
23." Brecher v. Republic ofArgentina, 806 F.3d 22, 24 (2d Cir. 2015) (citation omitted). "[T]he
touchstone of ascertainability is whether the class is sufficiently definite so that it is
administratively feasible for the court to determine whether a particular individual is a member."

Id
Judge Pitman correctly concluded that Plaintiff's proposed class is ascertainable.
Although Plaintiff proposes a large class, there are "objective criteria that are administratively
feasible" to identify the class members. Charron v. Pinnacle Grp. NY. LLC, 269 F.R.D. 221,
229 (S.D.N.Y. 2010). That is, namely, each individual's cell phone number can be found on a
list, which Plaintiffs expert used in creating his report. While Defendants dispute the scope of
the class and that they lacked consent to send the messages, they have not otherwise contested
the ability to identify the class.

C. Rule 23(b)
As previously discussed, the Court adopts Judge Pitman's recommendation that Plaintiff
established predominance - the first of Rule 23(b)(3)'s requirements. The Court also agrees with
Judge Pitman's assessment that the second requirement

superiority- is met. Superiority is

determined based on several considerations, including "(A) the class members' interests in
individually controlling the prosecution or defense of separate actions; (B) the extent and nature
of any litigation concerning the controversy already begun by or against class members; (C) the
desirability or undesirability of concentrating the litigation of the claims in the particular forum;

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and (D) the likely difficulties in managing a class action." In re US. Foodserv. Inc. Pricing
Litig., 729 F.3d 108, 130 n.15 (2d Cir. 2013) (quoting Fed. R. Civ. P. 23(b)(3)). "While Rule

23(b)(3) sets out four individual factors for courts to consider, manageability is, by the far, the
most critical concern in determining whether a class action is a superior means of adjudication."
Sykes, 780 F.3d at 82.

There is no indication - either identified by Defendants or to be found in the record - that
any class member has a unique individual interest in controlling this litigation or has already
brought an action against Defendants. Moreover, with Defendants' business located in the
Southern District of New York, this is the desirable forum to litigate this matter. Nor is there an
identifiable difficulty in managing this class action. Finally, the Court notes that, because each
claim asserted individually is statutorily limited to $500, see 47 U.S.C. § 227(b)(3)(B), these
TCPA individual claims are unlikely to be brought or successful. In this instance, therefore, the
class action mechanism is a superior method. See Sykes v. Mel Harris & Assocs., LLC, 285
F.R.D. 279,294 (S.D.N.Y. 2012).

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CONCLUSION
Accordingly, the Court adopts Judge Pitman's recommendation and grants Plaintiffs
motion for class certification. The Clerk of Court is respectfully directed to lift the stay in this
matter and terminate the motions pending at docket entries 57 and 85. No later than February
14, 2020, the parties shall submit a joint letter to the Court regarding proposed next steps,
including whether a referral to Magistrate Judge Cave or to the district's mediation program for
settlement discussions would be useful at this time.
Dated:

January 13, 2020
New York, New York

United States District Judge

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