In Karpilovsky v. All Web Leads, Inc., Case No. 17-C-1307, 2018 WL 3108884 (N.D. Ill. 2018), Judge Leinenweber certified a TCPA class.
The Plaintiffs, however, retained an expert, Young, who testified that the AWL website was not materially changed during the class period and, for that reason, all members of the proposed class experienced the same information-submission and click-through procedure when they used AWL’s website. (See, supra, at Parts II-A, II.A.1.) AWL did not retain a rebuttal expert nor in any other fashion produce evidence showing that any member of the class actually consented to the AWL terms. That shortcoming matters. Consider Rule 23(b)(3)’s predominance requirement: “While it is plaintiff’s burden to meet the predominance test,” opposition to predominance “based on theory, not evidence, is not a weighty objection.” Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2016 WL 25711, at *7 (N.D. Ill. Jan. 4, 2016). Thus, where the defendant’s objection to class certification fails to set forth specific evidence “and instead only makes vague assertions about consent,” individualized issues regarding consent will not predominate
over common questions of law or fact.” Toney v. Quality Res., Inc., 323 F.R.D. 567, 587 (N.D. Ill. 2018) (citation omitted). Rather than produce any specific evidence, AWL serves up a banquet of lawyerly free association: AWL asserts, without evidence, that Young’s typical user opinion—again, which states that typical users do not scroll below “Submit” buttons—does not much matter because some users might have used screens large enough to display the entire webpage, disclosure and all, without any need to scroll down. AWL also claims that contrary to Young’s opinion, “research concludes that consumers do, in fact, scroll.” (Cl. Cert. Resp. at 18, Dkt. 87.) AWL fortifies this opinion with two from-the-blue citations to online articles which purportedly suggest consumers “know to scroll to navigate a webpage’s content.” (Id. at 19.) There is more. AWL next claims that because 2.3 percent of the U.S. population is visually impaired, the class definition fails to account for a not-insignificant portion of the class that uses “screen readers,” which presumably read aloud the content on a webpage. (Id. at 20.) AWL does not bother to include within this purely legal conjecture what proportion of the visually-impaired population actually uses screen readers nor any explanation for how these readers work, i.e., whether they automatically read the fine print on every web page, or not. As detailed further below, AWL swings its consent defense as a cudgel against nearly all of the Rule 23 requirements. But for this defense to have any traction at the class certification phase, the defendant asserting it must produce specific evidence showing that a significant percentage of the proposed class provided consent. See, e.g., Toney, 323 F.R.D. at 587 (remarking that without specific evidence, consent defenses cannot defeat Rule 23 predominance); Savanna Group, Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *3-4 (N.D. Ill. Jan. 4, 2013) (St. Eve, J.) (rejecting defendant’s consent objection to class definition because defendant failed to offer specific evidence of consent). “Mere speculation,” which is all AWL has offered here, will not suffice. Toney, 323 F.R.D. at 587. Further, AWL not only failed to pony up specific evidence of consent, its fact-intensive speculations miss the mark entirely. TCPA disclosures must be “clear and conspicuous.” 47 C.F.R. § 64.1200(f)(8)(i). That standard is not a user-dependent inquiry, but rather asks whether a notice would be “apparent to the reasonable consumer.” Sullivan, 2017 WL 2378079, at *7 (citing 47 C.F.R. § 64.1200(f)(3) (emphasis added)). As such, AWL can spin its wheels about screen sizes and hearing aids all it likes, but those unsupported suppositions do not help their class certification rejoinder one whit. In short: AWL could have strengthened its position by providing specific evidence of consent or introducing an expert report of its own that contradicted Young’s conclusions. Having done neither, AWL now tries to fashion an escape hatch for itself from little more than legal brainstorming. That will not do. Consent remains a common issue and the claims of the whole class might well rise or fall with that determination. See, Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 318 F.R.D. 712, 725 (N.D. Ill. 2016) (citation omitted); see also, Butler v. Sears, Roebuck & Co., 727 F.3d 796, 798 (7th Cir. 2013). But without more from AWL, their consent-oriented musings pose little rebuttal to Plaintiffs’ Motion for Class Certification.