In Golan v. Veritas Entertainment, LLC, 2017 WL 193560, at *3 (E.D.Mo., 2017), Judge Webber certified a TCPA class. The allegations of Plaintiffs’ Second Amended Complaint (“Complaint”) focus on telemarketing of a movie titled “Last Ounce of Courage.” Plaintiffs allege Defendants engaged in an advertising campaign for the movie which included telephone calls to approximately four million residential telephone numbers throughout the United States. Plaintiffs allege the telephone calls were prerecorded, appeared as surveys to recipients about traditional American values, and told recipients if they believed in freedom and liberty, they would enjoy the movie. As alleged in the Complaint, Defendant Michael Huckabee was the voice for the prerecorded messages. Plaintiffs allege they received two telephone calls with the prerecorded voice to their residential telephone number, which was registered on the federal Do Not Call List. Further, Plaintiffs allege they did not consent to receive these calls. The Court found that consent could be determined on a class-wide basis.
Defendants argue determining if a class member consented is an individual inquiry which cannot be determined on a class-wide basis. This may be true in some TCPA cases. However, in this matter, Plaintiffs have submitted evidence showing this issue may be resolved on a class wide basis. Plaintiffs submitted a deposition of Defendant Joseph Gabriel in which he states none of the four million numbers called had consented to receiving future calls about movies for commercial purposes. Defendants argue some of the numbers had obtained prior consent to call about issues related to religious freedom. Whether consent to call about religious freedom is also consent to receive calls about a movie is a legal question which can be resolved on a class-wide basis and does not require individual inquiry. There is no evidence class members consented in other ways which would require individualized analysis. Based on the evidence submitted, the issue of consent in this case will be determined on a class-wide basis.
Since consent could be determined on a class-wide basis, the District Court found that the class was ascertainable.
The Eighth Circuit has not outlined a separate requirement of ascertainability. Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016). Instead, the Eighth Circuit states “it is elementary that in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.” Id. In Sandusky, the Eighth Circuit found fax logs showing the numbers which received faxes were objective criteria to make the class ascertainable. Id. at 997. Defendants cite several cases which outline more stringent requirements for ascertainability of a class, but those cases are from other circuits. This Court follows the guidance of the Eighth Circuit. Here, the class is ascertainable. Defendants’ arguments about consent and injury are addressed supra. As to identifying the households, Defendant Joseph Gabriel testified they kept a record of every phone number called by Defendants. There is a pending motion to compel to obtain the names and addresses associated with those phone numbers. However, this does not affect the ability to ascertain the class. Even if only phone numbers are provided, Plaintiffs will be able to derive addresses from the phone numbers because they are residential land lines. Further, Plaintiffs stated they already have a list of 372,159 telephone numbers with names and addresses. Therefore, the Court finds the class is sufficiently ascertainable to satisfy Rule 23.
RON GOLAN, et al., Plaintiff, v. VERITAS ENTERTAINMENT, LLC, et al., Defendants., 2017 WL 193560, at *2 (E.D.Mo., 2017)