In Lee v. Stonebridge Life Ins. Co., — F.Supp.2d —-, 2013 WL 542854 (N.D.Cal. 2013), Judge Seeborg certified a TCPA-text message class based on the following facts.
In this putative class action, plaintiff alleges that defendants violated the Telephone Consumer Protection Act, 42 U.S.C. §§ 227 et seq. (“TCPA”), by sending unsolicited text messages to consumers’ cell phones. Plaintiff seeks certification of a class of “[a]ll individuals that received a text message from telephone number “650–283–0793” from November 28, 2010 through December 2, 2010.” Defendant Stonebridge Life Insurance Company opposes class certification on several grounds, but its primary argument is that plaintiff simply cannot show that that Stonebridge faces any liability here. Defendant Trifecta Marketing Group LLC joins in Stonebridge’s opposition without offering any arguments of its own, despite the fact that it is situated differently from Stonebridge, and has no tenable basis to disclaim responsibility for the sending of the text messages. While Stonebridge has pointed to substantive hurdles plaintiff may face in establishing liability, the questions it raises likely can all be answered on a class-wide basis. As plaintiff has otherwise adequately shown the prerequisites to class certification to be satisfied, the motion will be granted.
Judge Seeborg found no impediment to class certification, stating that some of the merits-based defenses could be adjudicated after merits-based discovery and on merits-based dispositive motion(s).
Stonebridge’s more substantive argument is that it cannot be held liable for violating the TCPA, even assuming text messages of the kind alleged were sent to a large class of individuals. ¶ The shortcoming in Stonebridge’s position is that it has pointed to no question of law or fact that is not suitable for disposition on a class-wide basis. First, Stonebridge repeatedly insists that neither it nor Trifecta actually caused the messages to be sent. That third party contractors may have actually carried out the operation is unlikely to be a viable defense for either Trifecta or Stonebridge, but in any event, the availability of such a defense, as a legal or factual matter, does not turn on any issues specific to individual class members. Likewise, to the extent the facts and the law might not support imposing liability for the conduct of Trifecta on Stonebridge, that determination can be made as to the class as a whole. ¶ Stonebridge also attempts to avoid potential liability, either completely or on a class basis, by relying on the fact that Trifecta apparently was working on behalf of several independent customers when it sent the text messages. Stonebridge contends it cannot be liable under the TCPA unless a particular text message was sent on its behalf—as opposed to on behalf of other Trifecta customers. Again, the legal consequences of whatever the precise facts ultimately prove to be can be decided on a class-wide basis. ¶ At this juncture it appears unlikely that if Stone-bridge’s relationship with Trifecta was such that it could otherwise be held liable for the text messages, it can avoid responsibility merely because Trifecta used the same message to attract callers on behalf of more than one of its clients simultaneously. The issue does not, however, turn on what individual class members did or did not do in response to receiving the messages. The TCPA violations, if any, occurred when the messages were sent, not when class members phoned in and were pitched products or services of Stonebridge or any other Trifecta client. It may or may not be possible to hold Stonebridge legally responsible for outgoing messages that did not mention it, and which were also being used by Trifecta to solicit business for clients other than Stonebridge. Deciding that issue, though, will not depend on facts specific to individual class members. ¶ Stonebridge also suggests that Lee cannot even prove that all class members even received the alleged text message, or that an ATDS was used. Stonebridge attacks the validity of the conclusions Lee’s expert has drawn from his review of the records produced to date. Stonebridge claims that each class member will therefore have to prove he or she received an offending text message. These factual issues can and should be addressed largely through merits-based discovery into defendants’ records. If Lee ultimately cannot prove an ATDS was used, or that the text message was sent to class members as alleged, then summary judgment or perhaps decertification may be in order. At this juncture, however, such merits issues do not warrant denial of class certification. ¶ Finally, Stonebridge contends that issues of possible “consent” to receiving the messages will require individualized treatment of each class member’s claim. Stonebridge is not suggesting that class treatment is unavailable merely because there is a theoretical possibility that dialing lists selected through automatic processes might sometimes include individuals who, by happenstance, have previously consented to receiving marketing text messages. Rather, Stonebridge is arguing Lee has not eliminated the possibility that the dialing lists used here were generated, at least in part, from websites where individuals had consented to receiving such messages. If that is so, however, merits discovery should reveal it, with whatever consequences that may then have to the size of the class or whether any class action can proceed.