In McCurley v. Royal Seas Cruises, Inc., No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 52173 (S.D. Cal. Mar. 27, 2019), Judge Bashant certified a TCPA-telemarketing class.
In the wake of Van Patten and McKesson, it is clear that the evidence Royal offers as evidence of consent “strongly affects” the Court’s predominance analysis. McKesson, 896 F.3d at 932; see also Makaron, 324 F.RD. at 232-33; Etter v. Allstate Ins. Co., 323 F.R.D. 308, 313 (N.D. Cal. 2017) (“[O]ur court of appeals clarified that, notwithstanding Meyer . . . prior express consent ‘is not an element of a plaintiff’s prima facie case but is an affirmative defense for which the defendant bears the burden of proof.’ Neither Odiase nor Allstate addressed Van Patten in briefing, but that decision, not  Meyer, controls [*68] here.” (citations omitted)); Caldera, 320 F.R.D. at 519; see also Vulcan Golf, LLC v. Google Inc., 254 F.R.D. 521, 531 (N.D. Ill. 2008) (“The existence of affirmative defenses which require individual resolution can be considered as part of the court’s analysis to determine whether individual issues predominate under Rule 23(b)(3).”). The Court, therefore, considers Royal’s evidence of consent. In doing so, the Court is mindful that Royal’s evidence may allow the Plaintiffs to satisfy predominance.
b. Royal’s “Opt-In Procedure” and “Consent Records” Royal argues that “consent is the predominant issue for resolving class certification” in this case. (ECF No. 58 at 18.)17 At the heart of Royal’s consent argument is that its marketing program with Prospects obtains consent. “Whether issues of individualized consent defeat the predominance requirement in a TCPA case is made on a case-by-case basis after evaluating the specific evidence available to prove consent.” Legg v. PTZ Ins. Agency, Ltd., 321 F.R.D. 572, 577 (N.D. Ill. 2017) (citing Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 106-07 (N.D. Ill. 2013)); Selby v. LVNV Funding, LLC, No. 13-cv-01383-BAS(BLM), 2016 U.S. Dist. LEXIS 83940, 2016 WL 6677928, at *4 (S.D. Cal. June 22, 2016) (“Whether the issue of prior express consent can be resolved on evidence and theories applicable to the entire class necessarily depends on the circumstances of each case.”). “Violations of the TCPA ‘are not per se unsuitable for class resolution,’ and ‘there are no invariable rules regarding the suitability of a particular case . . . for class treatment; the unique facts of each case generally will determine whether certification is proper.'” Manno, 289 F.R.D. at 687 (quoting Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318, 327-28 (5th Cir. 2008)). Two principles guide a court’s evaluation of a consent defense asserted to defeat predominance. First, a defendant must actually produce evidence which shows prior express consent by the named plaintiffs or at least some putative class members. “Where a party has not submitted any evidence of . . . express consent, courts will not presume that resolving such issues requires individualized inquiries.” Bee, Denning, 310 F.R.D. at 629; see also Caldera, 320 F.R.D. at 519 (same). “[I]n the absence of any evidence of consent by the defendant, consent is a common issue with a common answer.” Kristensen, 12 F. Supp. 3d at 1305. Second, even if a defendant provides evidence of consent, whether the issue of consent is likely to devolve into individualized inquiries turns on the nature of the evidence provided. Consent can be resolved on a classwide basis if consent was obtained in an identical or substantially similar manner from class members. See Stemple v. QC Holdings, Inc., No. 12cv1997—BAS WVG, 2014 U.S. Dist. LEXIS 125313, 2014 WL 4409817 (S.D. Cal. Sept. 5, 2014) (finding predominance test satisfied when all class member filled out the same loan application); Bee, Denning, 310 F.R.D. at 628 (finding predominance satisfied for junk fax class because of “the striking similarity of the various fax advertisements and the frequency with which toll-free numbers listed on these fax advertisements connected to a Capital Alliance representative.”); Manno, 289 F.R.D. at 688, 691 (finding that defendant’s argument that all class members consented during an admissions process in which the class members provided their phone numbers was suitable for resolution on a classwide basis); Siding & Insulation Co. v. Beachwood Hair Clinic, Inc., 279 F.R.D. 442, 446 (N.D. Ohio 2012) (finding “no questions of individual consent” when the defendant faxed an advertisement to more than 16,000 recipients via a fax advertising company and the advertising company obtained the “recipient fax numbers from another source, InfoUSA”). Evidence that will typically defeat predominance is evidence that prior express consent was provided in a variety of contexts and, as such, would likely require highly individualized inquiries. See Gene & Gene LLC, 541 F.3d at 328-29 (agreeing that individualized consent inquires would predominate because “the evidence shows that BioPay culled fax numbers from purchased databases but also periodically culled fax numbers from various other sources—from information submitted by merchants through BioPay’s website, from information submitted at trade shows BioPay attended, and also from lists of companies with which BioPay or its affiliates had an established business relationship.”); Selby, 2016 U.S. Dist. LEXIS 83940, 2016 WL 6677928, at *10 (finding that individualized issues of consent would predominate because, inter alia, the debts for which telephone numbers were allegedly provided arose in varying contexts and in connection with different creditors); Blair v. CBE Grp., Inc., 309 F.R.D. 621, 629 (S.D. Cal. 2015) (finding that individualized issues would predominate because, inter alia, “Plaintiffs’ respective debts arose in different contexts, and therefore require extensive individual inquires to determine whether a particular class member provided her wireless number to the underlying creditor); Shamblin v. Obama, No. 8:13-cv-2428-T-33TBM, 2015 U.S. Dist. LEXIS 54849, 2015 WL 1909765, at *11 (M.D. Fla. Apr. 27, 2015) (refusing to certify class whether defendants showed that “consent was obtained in a multitude of ways—such as website signups, signups at events, campaign contributions, contest submissions, online petitions, and ‘offline’ signups (e.g., door to door field signups)—through which individuals provided their cell phone numbers to either [defendant].”); Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D. 574, 577-78 (S.D. Cal. 2013) (finding common questions did not predominate because class members had provided their phone numbers to the defendant in a variety of different scenarios, only some of which constituted prior consent). With these guiding principles in mind, Royal has not shown that the issue of consent will likely require individualized inquires that will predominate at trial because (1) Royal has not provided actual evidence of prior express consent and (2) the issue of consent is otherwise capable of classwide resolution.
i. No Actual Evidence of Prior Express Consent “Express consent is consent that is clearly and unmistakably stated.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (internal punctuation and citation omitted). Royal is “in the best position to come forward with evidence” that it received such consent before calling the class members. Booth v. Appstack, Inc., No. C13-1533JLR, 2015 U.S. Dist. LEXIS 40779, 2015 WL 1466247, at *12 (W.D. Wash. Mar. 30, 2015). Royal, however, has not come forward with such evidence. “[T]he precise type of evidence which could do [the] greatest harm” to Plaintiffs’ TCPA claims is absent from Royal’s opposition to class certification. Kristensen, 12 F. Supp. 3d at 1307. Royal has not provided a single affidavit from a proposed class member who expressly attests that he or she opted to receive calls for Royal’s services through the lead generation program. See Legg, 321 F.R.D. at 577 (finding that proposed class failed to meet predominance requirement because the defendants submitted affidavits from a number of proposed class members who “agreed to and expected to receive calls on their [cell] phones from defendants,” and therefore “the trial in [the] case [would] be consumed and overwhelmed by testimony from each individual class member . . . to determine whether the class member consented to receive the calls in question[.]”). Instead, Royal has submitted the declarations of Jennifer Poole, the Director of Marketing for Royal; Joshua Grant, the President of Prospects; and Kevin Brody, the CEO of Landfall. (ECF Nos. 58-3, 58-4, 58-7.) The declarants discuss in the abstract how they believe the lead generation program should work for “consumers,” “the consumer,” “the opted-in telephone number,” “a person” or “individual users” using a website. (Grant Decl. ¶¶ 11, 12; Brody Decl. ¶ 10, 12; Poole ¶¶ 12, 16.) The fundamental problem with the information provided by these individuals is that none of them has personal knowledge of whether Plaintiffs or any class member actually visited and completed the forms available at the two websites which Royal contends are the lead generation sources for the cell phone numbers of the class members. Royal’s declarations [*74] therefore cannot constitute evidence that class members provided consent before they were contacted on Royal’s behalf.18 See Kristensen, 12 F. Supp. 3d at 1307 (rejecting defendants’ argument that declarations offered by companies who had numbers of class members constituted evidence of express consent); Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 298-99 (N.D. Ill. 2014) (defendant failed “to present any specific evidence—as opposed to mere speculation—that this purportedly individualized issue predominate[d] over common issues.”); Cabrera v. Gov’t Employees Ins. Co., No. 12-61390-CIV, 2014 U.S. Dist. LEXIS 197169, 2014 WL 11894430, at *5 n.4 (S.D. Fla. Sept. 29, 2014) (rejecting consent argument because, given the lack of relationship between the defendants and the class members, “the Court believes that consent is unlikely to be a major issue at trial,” and because one defendant “offered only bare assertions of consent, without identifying a single instance in which consent was in fact obtained.”). The Court therefore departs from the consent conclusion in Gordon v. Caribbean Cruise Line, Inc., No. 14 C 5848, 2019 U.S. Dist. LEXIS 20604, 2019 WL 498937 (N.D. Ill. Feb. 8, 2019), a case on which Royal relies for the first time in its surreply and which involves a lead generation program for a defendant strikingly similar to Royal. (ECF No. 84-1 at 3 n.8, 7 (citing Gordon, 2019 U.S. Dist. LEXIS 20604, 2019 WL 498937, at *10).) . . .This Court finds Kristensen’s approach to requiring personal knowledge of consent more compelling and persuasive for the online “opt-in” forms at issue in this case.20 Accordingly, this Court will not credit bare assertions by a lead generator or Royal regarding who completed an online “optin” form in the absence of evidence from an actual class member who completed such a form and attests to providing consent before he or she received a call made on Royal’s behalf. Royal’s evidence is not analogous to evidence this Court has previously found to constitute actual evidence of prior express consent. . . Here, Royal has not produced evidence that either Plaintiff is in fact associated with the IP addresses in their “consent records.” More problematically, the key premise underlying Royal’s consent argument falters for the website that allegedly generated the lead for DeForest. Royal’s “consent record” identified myhealthcareauthority.com as the lead generation website for DeForest and Royal’s discovery response was to the same effect. Nevertheless, the Court accepts Royal’s and Prospects’ newfound agreement in their opposition to class certification—and after Plaintiffs moved for class certification—that Prospects’ data links the lead for DeForest’s cell phone number with www.yourautohealthlifeinsurance.com.21 Unlike Royal’s submissions regarding www.diabeteshealth.info, which include a “consent form” that identifies Royal by name, (see Brody Decl. Ex. A), Royal conspicuously omits from its submissions any evidence [*78] regarding the “consent form” available on www.yourautohealthlifeinsurance.com. The Court, however, has reviewed the “opt-in” form available on www.yourautohealthlifeinsurance.com that Plaintiffs identify in their reply and that Royal has not disputed is the relevant form. (Compare ECF No. 76 at 11-12 & n.17 with ECF No. 84-1.) The form links to a list of hundreds of companies, but there is no reference to Royal, Prospects, or any of the third-party digital marketing companies that Prospects has identified as companies from which it purchases leads. See http://www.yourautohealthlifeinsurance.com/companies/index.html (last accessed March 24, 2019). Thus, even assuming the form obtains consent for the companies identified, the form would not establish consent for DeForest or any class member for which this website generated a lead. See Satterfield, 569 F.3d at 955 (finding no express consent where the original scope of consent did not extend to unrelated third-party contacts). Without actual evidence of prior express consent from Royal, “[c]lass members could provide individual affidavits averring lack of consent, and Defendants would be unable to rebut with anything other than the unfounded testimony” of individuals who lack personal knowledge of who visited the websites generating the leads in this case. Kristensen, 12 F. Supp. 3d at 1307. Indeed, McCurley and DeForest have done precisely this by submitting declarations in support of class certification, which aver that neither of them provided consent, including for the website which Royal contends generated a lead for their respective cellular telephone number. (McCurley Decl. ¶¶ 4-21, 25-26; DeForest Decl. ¶¶ 3-4, 6-8.) Thus, the Court rejects Royal’s argument that Plaintiffs’ declarations show why individualized inquiries into consent will be necessary. (ECF No. 58 at 20; ECF No. 84-1 at 3 (citing Gordon, 2019 U.S. Dist. LEXIS 20604, 2019 WL 498937, at *11).)
ii. Consent is Otherwise Likely Capable of Classwide Resolution The Court does not believe that an additional showing is warranted for Plaintiffs to satisfy Rule 23(b)(3)’s predominance of common questions requirement given that Royal has not provided evidence of actual prior express consent. See Kristensen, 12 F. Supp. 3d at 1305. Nevertheless, the Court observes that the parties’ theories of consent are otherwise classwide in nature. The basic premise of Royal’s [*80] consent argument is that its 2.1 million “consent records” are “substantial evidence showing consent was validly obtained for every call in a 100% opt-in consent marketing program.” (ECF No. 58 at 4, 18-19.) The marketing program utilizes “opt-in” “consent” forms on the underlying websites to obtain leads, which trigger calls made by Prospects on Royal’s behalf. Thus, “[a] review of the entities’ procedures as to obtaining consent should produce a common answer.” Kristensen, 12 F. Supp. 3d at 1307; see also Moore, 311 F.R.D. at 611-12 (observing that “[c]ourts routinely hold that proof of a defendant’s uniform policy ‘is not plagued by individual inquiry, but is often sufficient to satisfy the predominance requirement.'” (citation omitted)); Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014) (“[T]he common question among class members is whether they received calls fitting the description in the class definitions. These definitions do not leave much room for variation and are undoubtedly common to each class member: offer of a free cruise; . . . use of a prerecorded or artificial voice; date of call; by, on behalf of, or for the benefit of defendants.”). Plaintiffs have also proffered a theory regarding the validity of consent obtained through Royal’s marketing program, which even Royal acknowledges [*81] is classwide in nature. Plaintiffs contend that leads generated for Royal are “manufactured” and assert that this theory can be tested by comparing the number of leads generated for a particular website with the website traffic data from the servers associated with the website. (ECF No. 76 at 13 n.18.) This theory no longer appears to be necessary to show that the issue of consent can be resolved on a classwide basis for any class member associated with a lead obtained from www.yourautohealthlifeinsurance.com. The theory, however, remains relevant to class members with leads generated from www.diabeteshealth.info. As the Court has discussed in its Rule 702 analysis, there is no fundamental disagreement that Weeks has specialized knowledge in web traffic analysis that could be applied to historical website traffic data. Although Weeks’s present website traffic conversion opinions are not useful on this point, “[i]t is not necessary that expert testimony resolve the merits of plaintiff’s claims; instead, the testimony must be relevant in assessing ‘whether there was a common pattern and practice that could affect the class as a whole.'” In re NJOY Consumer Class Action Litig., 120 F. Supp. 3d at 1069 (quoting Ellis, 657 F.3d at 983). Plaintiffs have offered a compelling theory [*82] that would apply to all class members linked to www.diabeteshealth.info and for which there is no indication at this stage that highly individualized inquiries would be necessary. Bee, Denning, 310 F.R.D. at 628. Accordingly, the Court concludes that Plaintiffs have met their burden to show that common questions are likely to predominate over individualized inquiries for these additional reasons. 2. Superiority of Class Resolution “Rule 23(b) also requires that class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.'” Hanlon, 150 F.3d at 1023 (quoting Fed. R. Civ. P. 23(b)(3)). The Court must determine “whether the objectives of the particular class action procedure will be achieved in the particular case.” Id. (citation omitted). The four factors for the Court’s examination are: (1) the interest of each class member in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1190-92 (9th Cir. 2001). Royal argues that Plaintiffs have not shown that a class action is superior because “there is a host of individualized issues.” (ECF No. 58 at 30.) The Court has rejected Royal’s underlying premise and thus Royal has not shown that a class action is not superior for Plaintiffs’ TCPA claims. The Court agrees with Plaintiffs that a class action for the TCPA claims in this case is superior to individual litigation. First, “[i]f plaintiffs cannot proceed as a class, some—perhaps most—will be unable to proceed as individuals because of the disparity between their litigation costs and what they hope to recover.” Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001). Statutory damages under the TCPA are limited to $500 for each negligent violation and $1,500 for each willful violation. See 47 U.S.C. § 227(b)(3)(B); 47 U.S.C. § 227(b)(3)(C). Courts recognize that given these damages relative to the costs of litigation, a class action is a superior means of adjudicating TCPA claims against a defendant. See Knutson, 2013 U.S. Dist. LEXIS 127032, 2013 WL 4774763, at *10; G.M. Sign, Inc. v. Group C Commc’ns., Inc., No. 08-cv-4521, 2010 U.S. Dist. LEXIS 17843, 2010 WL 744262, at *6 (N.D. Ill. Feb. 25, 2010). Second, and precisely because the TCPA “provides for a relatively small recovery,” this Court has recognized that “[i]n the context of the TCPA, the class action device likely is the optimal means of forcing corporations to internalize the social costs of [*84] their actions.” Bee, Denning, 310 F.R.D. at 630. The TCPA “can only be effectively enforced if consumers have available a mechanism that makes it economically feasible to bring their claims.” Id. The Court’s view about the superiority of TCPA class actions—in cases for which certification is appropriate— is no different today.