Etter cites various decisions for the proposition that “awareness” of an offending transmission is unnecessary to establish standing because “occupation” of the fax line is a sufficiently concrete injury. None of the cited decisions, however, support the further proposition that Etter has standing even despite the absence of evidence or allegations in the complaint that defendants successfully transmitted the offending fax to him. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (a TCPA plaintiff had standing where the parties did not dispute that the defendants successfully sent the offending text messages); Imhoff Inv., LLC v. Alfoccino, Inc., 792 F.3d 627, 630, 634 (6th Cir. 2015) (a TCPA plaintiff had standing where fax logs showed two successful transmissions of the offending fax); Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, 781 F.3d 1245, 1252–53 (11th Cir. 2015) (a TCPA plaintiff had standing where unrefuted record evidence established successful transmission of the offending fax). . . .The problem is not that Etter proposed class definitions not set forth in the complaint but rather that Etter proposes to bring a class claim for which he has not even alleged, much less established, standing. Certification is therefore DENIED as to proposed Class A.
Judge Alsup found that the named Plaintiff’s lack of ownership of the fax machine was not fatal to class certification.
Odiase contends Etter’s claim is also atypical because, although he is the sole named plaintiff, the fax number he claims to own belongs to a plumbing and heating business that he co-owns with his wife. Odiase claims it remains unclear whether the 2016 fax was addressed to Etter, his wife, or their business, and baldly asserts that “the factual difficulty in ascertaining the recipient of the fax illustrates that Plaintiff’s claim is not likely to be typical of the class he seeks to represent” (see Dkt. No. 62 at 20–21). This hand-wringing is unnecessary. Odiase has provided no authority or analysis as to why or how the relationship between Etter, his wife, and their company would materially affect the substance of Etter’s TCPA claim. Nor does Odiase explain why the mere possibility that some fax numbers at issue might be associated with multiple recipients defeats typicality at this stage.
Turning to the question of whether the affirmative defense of prior express consent can be adjudicated on a class-wide basis here, this order first stresses that the undersigned judge has been careful to insist on a common method of proof as a requirement of predominance for class certification purposes. See, e.g., Lou v. Ma Labs., Inc., No. C 12–05409, 2014 WL 68605, at *3 (N.D. Cal. Jan. 8, 2014); Lane v. Wells Fargo Bank, N.A., No. C 12–04026, 2013 WL 3187410, at *8 (N.D. Cal. June 21, 2013); Dugan v. Lloyds TSB Bank, PLC, No. C 12–02549, 2013 WL 1703375, at *7–8 (N.D. Cal. Apr. 19, 2013). On the surface, the affirmative defense here seems to present insurmountable issues of individualized proof. Upon closer examination through the practical lens of how the trial will unfold, however, a common method of proof emerges from our facts. Defendants base this affirmative defense, not on any one-by-one inquiry of consent from individual recipients, but on general testimony about the practices and procedures of Odiase’s agency plus one example of a customer who submitted a declaration that she had given such consent (see Dkt. Nos. 62 at 4–5, 16–17; 64 at 13–18). On this record and after cross-examination of the underlying testimony, a jury could reasonably conclude that defendants have (or have not) provided sufficient evidence of adequate practices or procedures to obtain consent and thereby accept (or reject) the affirmative defense on a class-wide basis. In a similar vein, Allstate contends the affirmative defense of an established business relationship will also require individualized inquiries that will predominate over the common questions in this case. But Allstate’s own argument explains how the reach of that affirmative defense can be determined by simply comparing defendants’ business records to identify current and former customers among the alleged recipients of the offending fax (Dkt. No. 64 at 18–19). In other words, while the inquiry is about the statuses of individual recipients, it remains susceptible to a common method of proof. Under these circumstances, this order finds that any individual issues raised by this affirmative defense will not predominate over common questions.
Finally, Judge Alsup found that the absence of a feasible way to adminster the class was not fatal to class certification after Briseno.
Etter’s best authority is Briseno v. ConAgra Foods, Inc., wherein our court of appeals recently held that class certification does not require an administratively feasible way to identify members of the class. 844 F.3d 1121, 1133 (9th Cir. 2017). Odiase cites Briseno for the general principle that courts consider “the likely difficulties in managing a class action” in evaluating superiority but fails to come to grips with Briseno‘s holding that Rule 23 does not require an administratively feasible way to identify members of the class, or with Etter’s argument that successful transmission of the offending fax is an objective method of defining the proposed class even if we cannot reliably identify specific class members (see Dkt. No. 62 at 8–14). Allstate makes a similar argument and cites Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 821 F.3d 992 (8th Cir. 2016), for the proposition that, “without fax logs, class members are not ‘ascertainable’ because there is no objective criteria for identifying class members” (Dkt. No. 64 at 20–21). The cited portion of Sandusky, however, merely observed that, while “the subscriber to the fax number may not be the recipient of the fax …fax logs showing the numbers that received each fax are objective criteria that make the recipient clearly ascertainable.” 821 F.3d at 997–98. In other words, Sandusky found that fax logs were sufficient to establish ascertainability but, contrary to Allstate, does not further stand for the proposition that fax logs are necessary to establish ascertain ability.* This order further agrees with Etter that, insofar as defendants are the ones responsible for the absence of more detailed fax transmission records, they should not benefit from their poor recordkeeping by dodging a class action on that basis (see Dkt. No. 67 at 14–15). Besides, in this case there may well be a reliable method of identifying individual class members even in the absence of detailed fax logs. For example, Etter’s forensics expert, Robert Biggerstaff, reviewed both the WestFax invoice indicating 17,432 successful transmissions and the “exception report” identifying 16,006 specific failed transmissions in the WestFax broadcast. He reasoned that the original target list for that broadcast would contain at least 33,438 fax numbers, and thereby deduced that the target list was likely “Odiase 2212,” another spreadsheet produced by Odiase in discovery. He then subtracted the fax numbers from the exception report from those in the target list to derive a list of 15,286 unique fax numbers representing the 17,432 successful transmissions documented by the WestFax invoice (see Dkt. No. 67-2 ¶¶ 18–23). In its opposition brief, Allstate criticizes Biggerstaff’s methodology and claims he failed to consider other important documents in his analysis (Dkt. No. 64 at 23–24). These arguments go to the merits of the case but do not undermine the point for present purposes, i.e., that the absence of fax logs is not necessarily fatal to efforts to identify specific class members. For example, both in briefing and during oral argument, defendants made much of the fact that twelve of the 97 fax numbers that opted out after receiving the 2016 fax (and therefore confirmed that they actually received that fax) did not appear on Odiase 2212. Thus, defendants insist, Odiase 2212 could not have been the target list for the 2016 fax. As defendants themselves admit, however, those twelve numbers did not appear on any list produced thus far (see Dkt. No. 64 at 9, 23). Etter and Biggerstaff’s response that logical explanations — including human error and the option to remove multiple numbers through the opt-out process — are readily available for the twelve discrepancies is therefore persuasive. At minimum, a rational jury could easily accept (or reject) Etter’s theory that Odiase 2212 was indeed the target list for the 2016 fax, albeit with some inferences to connect the dots. . . In summary, this order GRANTS Etter’s motion to certify proposed Class B because that class satisfies the requirements of Rule 23(a) and 23(b)(3) but DENIES his motion to certify proposed Class A because he lacks standing.