Allard v. SCI Direct, Inc.

Filing 61

ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATTION 23 signed by Judge Gershwin A. Drain on 7/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LINDA ALLARD, on behalf of herself and
all others similarly situated,

Plaintiff,

Case No. 16-cv-01033
Hon. Gershwin A. Drain

vs.

SCI DIRECT, INC. d/b/a NEPTUNE
SOCIETY,
Defendant.
__________________________________/
ORDER GRANTING PLAINTIFF’S MOTION
FOR CLASS CERTIFICATION [#23]
I.

INTRODUCTION
Plaintiff, Linda Allard, filed the instant action against Defendant, SCI

Direct, Inc. (“SCI”) on May 27, 2016, asserting violations of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C § 227(b) and § 227(c). Presently
before the Court is Plaintiff’s Motion to Certify Class, filed on January 9, 2017,
supplemented on May 5, 2017. 1 This matter is fully briefed and for the reasons

1

Briefing on Ms. Allard’s Motion for Class Certification was stayed for approximately three months so the Court
could resolve SCI’s Motion for Summary Judgment prior to its resolution of Plaintiff’s Motion for Class
Certification. On July 10, 2017, the Court denied SCI’s Motion for Summary Judgment.

-1-

discussed below, the Court will GRANT Ms. Allard’s Motion for Class
Certification.
II.

FACTUAL BACKGROUND
The facts giving rise to the instant action have been set forth in this Court’s

Opinion and Order denying SCI’s Motion for Summary Judgment. See Dkt. No.
59 at Pg ID 1095-99. Therefore, the Court will summarize the facts relevant to the
resolution of the instant motion.
SCI is a provider of pre-need cremation services, doing business as Neptune
Society. SCI obtains lead information for potential customers through the Neptune
Society website or mailer cards sent by potential customers. The standardized
mailer cards allow individuals to check a box stating “[y]es! I want to learn more
about Neptune pre-need cremation plans” and to leave his or her contact
information. SCI’s mailer cards do not contain any disclosure regarding autodialed
or prerecorded calls. Nor does SCI have any other solicitation materials that
disclose the use of autodialed or prerecorded calls to potential customers.
In February of 2013, Ms. Allard provided SCI with her cellular telephone
number on a mailer card. Shortly thereafter, SCI began placing telemarketing calls
to her cellular phone advertising its services. However, Ms. Allard never provided
consent for prerecorded or autodialed calls, nor could she have, because SCI never
disclosed that its calls may use an automatic dialer system or prerecorded voice.

-2-

Ms. Allard requested that SCI cease contacting her on several occasions, however
her requests were not honored.
III.

LAW & ANALYSIS
A.

Standard of Review

“A district court has broad discretion to decide whether to certify a class.” In
re Whirlpool Corp. Front–Loading Washer Products Liability Litigation, 722 F.3d
838, 850 (6th Cir. 2013); see also In re Am. Medical Sys., Inc., 75 F.3d 1069, 1079
(6th Cir. 1996). Yet, it bears repeating that “[t]he class action is ‘an exception to
the usual rule that litigation is conducted by and on behalf of the individual named
parties only.’” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir.
2012) (quoting Wal–Mart v. Dukes, 564 U.S. 338, 348 (2011)). Moreover, “Rule
23 does not set forth a mere pleading standard. A party seeking class certification
must affirmatively demonstrate his compliance with the Rule—that is, he must be
prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.” Wal–Mart, 564 U.S. at 351 (emphasis in original); In
re Am. Med. Sys., 75 F.3d at 1079 (noting the party seeking certification bears the
burden to show all prerequisites under Rule 23 are satisfied).
To obtain class certification pursuant to Rule 23 “the plaintiffs must show
that ‘(1) the class is so numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3) the claims or defenses

-3-

of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.” In re Whirlpool, 722 F.3d at 850 (quoting Fed. R. Civ. P. 23(a)). “These
four

requirements—numerosity,

commonality,

typicality,

and

adequate

representation—serve to limit class claims to those that are fairly encompassed
within the claims of the named plaintiffs because class representatives must share
the same interests and injury as the class members. Id. at 850–51 (citing Wal–Mart,
564 U.S. at 348). When reviewing a plaintiff’s motion for class certification, the
district court must conduct a “rigorous analysis” of the Rule 23 requirements. In re
Am. Med. Sys., 75 F.3d at 1078–79 (quoting General Tel. Co. of Southwest v.
Falcon, 457 U.S. 147, 161).
In addition to meeting the four prerequisites of Rule 23(a), the proposed
class must meet at least one of the three requirements set forth in Rule 23(b). Wal–
Mart, 564 U.S. at 344. In the present action, Plaintiff seeks class certification
under Rule 23(b)(3), which requires that the “questions of law or fact common to
class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Plaintiff bears
the burden to show that all of the class certification prerequisites have been met. In
re Whirlpool, 722 F.3d at 851 (citation omitted).

-4-

B.

Class Definition and Ascertainability of the Class
“[B]efore a court may certify a class pursuant to Rule 23, ‘the class

definition must be sufficiently definite so that it is administratively feasible for the
court to determine whether a particular individual is a member of the proposed
class.’” Young, 693 F.3d 532, 537–38 (citation omitted). In evaluating this
“ascertainability” requirement, the Sixth Circuit has indicated that class definitions
which are “amorphous” or “imprecise” do not meet this standard. Id. at 537–38
(citation omitted); see also Avio, Inc. v. Alfoccino, Inc. (Avio II ), 311 F.R.D. 434,
441 (E.D. Mich. 2015) (granting class certification); see also John v. National Sec.
Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (holding that “[t]he existence
of an ascertainable class of persons to be represented by the proposed class
representative is an implied prerequisite of the Federal Rule of Civil Procedure
23.”).
Further, “[f]or a class to be sufficiently defined, the court must be able to
resolve the question of whether class members are included or excluded from the
class by reference to objective criteria. In some circumstances, a reference to
damages or injuries caused by particular wrongful actions taken by the defendants
will be sufficiently objective for proper inclusion in a class definition.” Young, 693
F.3d at 538–39 (citation omitted).

-5-

In the present action, Ms. Allard seeks to certify two classes with the
following description:
Prerecord Class: Since October 16, 2013, Plaintiff and all persons
within the United States to whose telephone number Defendant SCI
Direct, Inc. placed a telemarketing telephone call using CallFire,
Inc.’s calling platform when that call was dispositioned as
“Answering Machine,” “Live Answer,” or “Do Not Call.”
DNC Class: From May 27, 2012 to May 27, 2016, Plaintiff and all
persons within the United States to whose telephone number
Defendant SCI Direct, Inc. placed (or had placed on its behalf) two or
more telephone calls for telemarketing purposes in a 12-month period.
The Court agrees with Ms. Allard that the class definitions are both definite
and rely upon objective criteria to determine membership. Specifically,
membership in the classes is determinable through records maintained by SCI or
CallFire. The Court notes that SCI does not raise any objection relating to the
ascertainability requirement. As such, the Court finds that the definition of each
class is sufficiently definite.
C.

Rule 23(a) Requirements
1.

Numerosity

Pursuant to Rule 23(a)(1), the numerosity requirement is satisfied when “the
class is so numerous that joinder of all members [of the class] is impracticable.
Fed. R. Civ. P. 23(a)(1). The numerosity factor examines the specific facts of each
case and imposes no absolute limitations. See Senter v. General Motors Corp., 532
F.2d 511, 523 n.24 (6th Cir. 1976), cert. denied 429 U.S. 870 (1976). The modern

-6-

trend for meeting the numerosity factor is to require at a minimum “between 21
and 40” class members. See Rodriguez v. Berrybrook Farms, Inc., 672 F.Supp.
1009, 1013 (W.D. Mich. 1987); see also Roman v. Korson, 152 F.R.D. 101, 105-06
(W.D. Mich. 1993). Here, Ms. Allard’s evidence shows that calls made using Mr.
Halprin’s account cover more than 1,800 unique persons and over 7,400 calls. Dkt.
No. 44-11. Even though Ms. Allard has not produced the calling records for SCI’s
other CallFire accounts, calls made using Mr. Halprin’s account alone satisfies the
numerosity requirement for the Prerecorded Class. As to the DNC Class, evidence
produced by Ms. Allard shows that SCI made two or more calls in a 12-month
period to 585,195 persons. Dkt. No. 44-20. SCI does not make any objection to the
above records. Thus, the Court finds that the numerosity requirement is satisfied
for both the Prerecord and the DNC Classes.
2.

Commonality

A class action may be certified only if “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2).
Rule 23(a)(2) requires plaintiffs to prove that there are questions of
fact or law common to the class....[t]o demonstrate commonality, the
plaintiffs’ claims must depend on 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.
Young, 693 F.3d at 542 (quoting Wal–Mart, 564 U.S. at 350.). “When the legality
of the defendant’s standardized conduct is at issue, the commonality factor is
-7-

normally met.” Gilkey v. Central Clearing Co., 202 F.R.D. 515, 521 (E.D. Mich.
2001).
In the present case, Ms. Allard represents that the common questions for the
Prerecord Class include: (i) whether SCI had a practice of obtaining consent in a
way sufficient to satisfy “prior express written consent”; (ii) whether SCI’s calls
made through CallFire used a prerecorded voice or an automatic dialing system;
(iii) whether SCI placed prerecorded or autodialed telemarketing calls to persons
who did not previously provide SCI with prior express written consent to receive
such calls; and (iv) whether SCI placed such calls willingly, which if proven,
entitles members of the Prerecord Class to treble damages. Ms. Allard also lists
common questions for the DNC Class: (i) whether SCI had a written policy for
maintaining a do-not-call list; (ii) whether SCI trained its personnel engaged in any
aspect of telemarketing on the existence and use of the do-not-call list; (iii)
whether SCI placed calls for telemarketing purposes; and (iv) whether SCI placed
such calls willingly to give members of the DNC Class rights to treble damages.
In response, SCI argues that the commonality requirement is not met
because both the Prerecord Class and the DNC Class require individualized
determinations of consent. Specifically, SCI argues that section 227(c) is
inapplicable for class members who gave prior express consent. As the Court has
decided this issue in its order denying SCI’s motion for summary judgment,

-8-

section 227(c) applies to any person or entity that makes telemarketing calls
without instituting procedures for a do-not-call list, regardless of whether the
persons being called agree to the telephone solicitations. See Dkt. No. 59, p. 14–15.
Therefore, SCI’s argument is without merit.
SCI also argues that determining whether and when each member of the
Prerecord Class revoked his or her consent to be contacted by SCI will require
individualized proof. SCI relies on Boyd v. General Revenue Corporation to argue
that a person may give consent by knowingly releasing her telephone number
absent contrary instructions. See Dkt. No. 49, Pg ID 953; 5 F. Supp. 3d 940, 954
(M.D. Tenn. 2013). However, Boyd was decided on March 7, 2013, before the
prior express written consent requirement took effect on October 16, 2013. See
Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, 27 FCC Rcd. 1830, 1857 (F.C.C. 2012). Thus, SCI’s reliance on Boyd is
misplaced. Ms. Allard correctly cited Hill v. Homeward Residential in her reply:
The FCC’s regulations for telemarketers now require a more specific
type of consent—namely, that the called party consents, in writing, to
being called by an auto-dialer.
799 F.3d 544, 552 (6th Cir. 2015) (emphasis in original). In the present case, SCI
has admitted during discovery that none of the materials through which it obtained
telephone numbers contained the required disclosure. See Resp. No. 2, Dkt. No.
44-2, Pg ID 728. So far, SCI has not presented any evidence showing that it

-9-

obtained the express written consent from any leads to make prerecorded calls.
Therefore, the Court does not need to determine whether SCI obtained consent for
each member of the Prerecord Class and whether and when said member revoked
his consent because SCI could not have obtained legally sufficient consent under
Hill, supra. See Wal–Mart, 564 U.S. at 350 (“[C]ertification is proper only if ‘the
trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied.’ Frequently that ‘rigorous analysis’ will entail some overlap
with the merits of the plaintiff’s underlying claim.”) (internal citation omitted). The
Court hereby finds that these common questions of law and fact satisfy the
commonality requirement pursuant to 23(a)(2).
3.

Typicality

A plaintiff’s 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 if his or
her claims are based on the same legal theory.” In re American Medical Sys., 75
F.3d at 1078. “A necessary consequence of the typicality requirement is that the
representative’s interests will be aligned with those of the represented group, and
in pursuing his own claims, the named plaintiff will also advance the interests of
the class members.” Young, 693 F.3d at 542 (citation omitted).
SCI argues that Ms. Allard is not a typical class representative because many
other class members, unlike Ms. Allard, may never have revoked their consent to

-10-

be contacted. The Court finds Defendant’s argument unpersuasive because the
“revocation of consent” issue is irrelevant to the resolution of the claims herein.
SCI has admitted that none of its materials contained the mandated disclosures for
making autodialed or prerecorded calls.

As such, SCI did not have legally

sufficient consent to make such calls, thus there is no need to address the class
members purported revocation of such consent. Additionally, SCI’s arguments
concerning consent and § 227(c) have been considered and rejected by this Court
in its Opinion and Order denying SCI’s Motion for Summary Judgment. Ms.
Allard is a typical class representative whose rights were allegedly infringed by
SCI under the TCPA. Therefore, the Court finds that typicality requirement has
been met.
4.

Adequacy of Representation

Pursuant to Rule 23(a)(4), the court must find that the “representative parties
will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4). The Sixth Circuit has held that there are two criteria for determining the
adequacy of representation: “1) the representative must have common interests
with unnamed members of the class; 2) it must appear that the representatives will
vigorously prosecute the interests of the class through qualified counsel.” Senter,
532 F.2d at 525.

-11-

SCI argues that Ms. Allard is not an adequate representative of the classes
because Ms. Allard felt offended by SCI’s harassing practice while other
customers of SCI might not feel this way. In addition, SCI questions Ms. Allard’s
ability to represent the class because Ms. Allard’s counsel filed an identical case
against SCI in a different court. Critically, Defendant has failed to cite to any case
law from the Sixth Circuit holding that a class representative is rendered
inadequate because some people in a class feel less offended by a defendant’s
violations of the law. The Court notes that any person has statutory standing to
assert a violation of the TCPA, regardless of whether she feels offended or not. See
47 U.S.C. § 227(b)(3), (c)(5). Moreover, any member who wants to opt out has
such right under a class action certified under Rule 23(b)(3). See Fed. R. Civ. P.
23(c)(2)(B)(5). Accordingly, SCI’s first argument is without merit.
Additionally, SCI fails to provide any authority that class counsel is
somehow inadequate because he has filed a similar case with different plaintiffs in
a separate court. This is not a reason to deny certification.
D.

Rule 23(b)(3) Requirements

Before a court can certify a class action, the court must find that the class
action fits within one of the four categories of class actions maintainable under
Rule 23(b). Ms. Allard seeks certification of the Classes under Rule 23(b)(3). Rule
23(b)(3) asks the court to find that questions of law or fact common to class

-12-

members predominate over any questions pertinent to individual members and the
class action is superior to other methods of adjudication. The matters pertinent to
these findings include: (A) “the class member’s 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,” and (D) “the likely difficulties in managing a class action.”
Fed. R. Civ. P. 23(b)(3)(A)–(D).
1.

Predominance

The Sixth Circuit has explained that “to satisfy Rule 23(b)(3), named
plaintiffs must show, and district courts must find, that questions of law or fact
common to members of the class predominate over any questions that affect only
individual members.” In re Whirlpool, 722 F.3d at 860. “[T]he predominance
inquiry must focus on common questions that can be proved through evidence
common to the class. A plaintiff class need not prove that each element of a claim
can be established by classwide proof: ‘What the rule does require is that common
questions ‘predominate over any questions affecting only individual [class]
members.’” Id. at 858 (internal citation removed).
Defendant argues common questions of law and fact do not predominate in
this action because the Court would be forced to make a “case-by-case inquiry”

-13-

into the issue of consent revocation that would require a series of individual trials.
However, this argument has been addressed supra in Part.C.2 and is unpersuasive.
Rather, the Court finds that the question whether SCI 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.
2.

Superiority

Ms. Allard argues that, given the small amount of damages likely to be
recovered relative to the resources required to prosecute such an action, a class
action would be efficient and fair to the judicial system and the litigants. The Sixth
Circuit has expressly agreed with Ms. Allard’s argument:

“[t]he denial of a

plaintiff class sometimes defeats the case as a practical matter because the stakes
are too small and the litigations costs are too high for the individual plaintiff to go
forward. Such is the case here, where an individual’s recovery is limited to a
maximum of $1,500.” In re Sandusky Wellness Ctr., LLC, 570 F. App’x 437, 437
(6th Cir. Jun. 12, 2014)(internal citations omitted). Furthermore, class certification
will promote consistency of rulings and judgments, giving all parties the benefit of
finality. SCI does not make any objection to the superiority requirement.
Accordingly, the Court finds that the superiority requirement is satisfied.

-14-

IV.

CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that Ms. Allard’s

Motion for Class Certification [#23] is GRANTED.
IT IS FURTHER ORDERED that the Court certifies two Classes, pursuant
to Rule 23(b)(3), consisting of the following:
Prerecord Class: Since October 16, 2013, Plaintiff and all persons
within the United States to whose telephone number Defendant SCI
Direct, Inc. placed a telemarketing telephone call using CallFire,
Inc.’s calling platform when that call was dispositioned as
“Answering Machine,” “Live Answer,” or “Do Not Call.”
DNC Class: From May 27, 2012 to May 27, 2016, Plaintiff and all
persons within the United States to whose telephone number
Defendant SCI Direct, Inc. placed (or had placed on its behalf) two or
more telephone calls for telemarketing purposes in a 12-month period.
IT IS FURTHER ORDERED that Plaintiff Linda Allard is appointed as
class representative for the Prerecord Class and the DNC Class.
IT IS FURTHER ORDERED that Jeremy M. Glapion and the Glapion Law
Firm LLC are appointed as class counsel pursuant to Rule 23(g) of the Federal
Rules of Civil Procedure.
IT IS FURTHER ORDERED that, within thirty (30) days of the date of this
Order, Class Counsel shall file a proposed class notification form which complies
with Fed. R. Civ. P. 23(c), together with a statement describing the method by
which the notice will be provided to class members and a list of persons or entities
to whom the notice will be sent.

-15-

SO ORDERED.
Dated:

/s/ Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Sitting By Special Designation

-16-