District Court (Cal.) Certifies TCPA Text-Message Class

In Stern v. DoCircle, Inc., 2014 WL 486262 (C.D.Cal. 2014), Judge Guilford certified a TCPA text message class.  The facts were as follows:

Defendant DoCircle is a business that offers an online service allowing its customers to send text messages. (Rhie Depo., Dkt. No. 42–2 Ex. 2, at 10–11.) Marc Sporn, a third party who conducts business under the name Business Transact Systems” (“BTS”), is one of Defendant’s customers. (Sporn Decl., Dkt. No. 42–3, at ¶¶ 1, 8.) Under his contract with Defendant, Sporn agreed that he would use Defendant’s service to send text messages only to subscribers who had consented to receive messages. (Id. ¶ 8 and Ex. 4.) Sporn used Defendant’s service to send hundreds of thousands of text messages to cell phones, including Plaintiff’s phone. (See id. ¶ 9; First Amended Class Action Complaint (“FAC”), Dkt. No. 40, at ¶ 11.) ¶  Plaintiff alleges that neither he nor the other putative class members gave prior express consent to receive these messages. (FAC ¶ 1.) According to Plaintiff, Defendant has “non-existent monitoring procedures” and permitted Sporn to import cell phone numbers into its system without any proof that the users of the cell phones consented to receiving messages. (Id. ¶¶ 11–12.)  ¶  But according to Sporn, it was the policy of BTS to contact only consumers who consented to receive text messages. (Sporn Decl. ¶ 10.) Sporn states that the messages BTS sent through Defendant’s messaging service complied with this policy. (Id. ¶ 11.) BTS operates over eighty-five website where, Sporn contends, consumers can voluntarily provide their consent to receive marketing information. (Id. ¶ 5.)  ¶  Plaintiff sued DoCirle, but did not list Sporn as a Defendant. Defendant has filed a ThirdParty Complaint against Sporn seeking indemnification for each of Plaintiff’s claims against Defendant. (First Amended Third–Party Complaint, Dkt. No. 26.)

Judge Guilford found that individual questions of fact (i.e. consent) did not predominate, and that the class was ascertainable:

Defendant contends that “the Court would need to determine numerous individualized issues regarding the merits of the case” to determine whether an individual is a member of the class. (Opp’n at 15.) The class is defined as individuals who received “unauthorized” text messages, and Defendant argues that the Court will have to determine whether BTS obtained consent from each recipient of a text message. This argument is very similar to Defendant’s Rule 23(b)(3) argument that individualized issues predominate, and it strikes the Court as better fitting under Rule 23(b)(3). But some courts have held that individualized consent issues rendered proposed TCPA classes unascertainable. See, e.g., Gannon v. Network Tel. Servs., Inc., 2013 WL 2450199 (C.D.Cal. June 5, 2013) (“Based on these facts, the Court would have to hold mini-trials to determine who received unauthorized text messages and thus, who is a class member.” (internal citation marks omitted)).  ¶  Based on the facts before it now, it does not appear that the Court will have to make individualized determinations of consent. While such determinations would be necessary if the parties presented individualized evidence of consent, they haven’t done so. Aside from evidence concerning whether Plaintiff himself consented, Plaintiff hasn’t presented any individualized evidence as to the consent of other class members. Neither has Defendant. Defendant’s primary evidence is a declaration by Marc Sporn stating that BTS has policy of obtaining consent and that BTS followed that policy. (See Sporn Decl. ¶¶ 10–11.) But this evidence doesn’t differ between putative class members, and the Court’s evaluation of it will apply to all class members equally. Defendant has also provided some individualized evidence of text messages that putative class members sent in reply, most of them either asking for more information or asking to unsubscribe. (Rigali Decl., Dkt. No. 42–2, ¶ 5.) The Court, while reserving the right to be persuaded otherwise as the case progresses, is not convinced that these reply texts are probative of consent.  ¶  The parties dispute who bears the burden of proof on consent. But whether the lack of individualized evidence will ultimately favor Plaintiff or Defendant isn’t important at this stage. What matters now is that individualized issues don’t appear to be an obstacle to managing the case as a class action. If the parties present a multitude of individualized evidence on consent later in the case, that evidence might make a class action unwieldy, and the Court can revisit whether class certification is proper. But as of now, the Court hasn’t seen much individualized evidence from either party.  ¶  Defendant also argues that the class is not ascertainable because “undisputed facts show that BTS obtained the requisite consent” to send text messages to all putative class members. (Opp’n at 10.) But this is an argument that Plaintiff will lose on the merits, not an argument as to whether the class definition is administratively feasible. Cf. Hinman v. M and M Rental Center, Inc., 545 F.Supp.2d 802, 807 (N.D.Ill.2008) (“[B]y certifying a class … I am merely setting the boundaries of the class, not resolving the substantive issues.” (internal quotation marks omitted)). Defend-ant’s argument is one for summary judgment, not one that is necessary or appropriate for the Court to resolve now. See Ellis, 657 F.3d at 983 n. 8.  ¶  The Court finds that the class is ascertainable.

Judge Guilford also found that the Class Representative did not lack Article III standing because he was not the subscriber of the cellular telephone:

First, Defendant contends that Plaintiff lacks an injury in fact because his cell phone is on the phone plan of his father’s business, and Plaintiff did not pay the bill for that account. But the TCPA creates a right to be free from unwanted calls and messages, and provides for statutory damages whether or not the recipient had to pay a higher phone bill as a result of the text messages. See Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 682 (S.D.Fla.2013). Numerous courts have held that a regular user of a phone, even if registered in someone else’s name, has standing under the TCPA. See id. (citing cases). Defendant cites no authority to the contrary. The Court believes Plaintiff has sufficiently pled an injury under the TCPA.  ¶  Second, Defendant argues that Plaintiff lacks standing because the alleged injury cannot be fairly traced to Defendant. Defendant argues that it did “not actually cause any of the alleged marketing messages to be sent” because it did not determine the content or select the recipients. (Opp’n at 22.) Defendant is basically arguing that it isn’t liable. But whether Defendant helped cause the injury, and whether Defendant will prove liable for the injury, are separate questions. See Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 869 (9th Cir.2002) (“The point is not whether these arguments will prevail but whether they have enough substance to require addressing.”). Whether or not Defendant will be liable, Plaintiff has sufficiently alleged that his injuries can be traced to Defendant’s text messaging service.  ¶  The Court concludes that Plaintiff has Article III standing to sue Defendant.