Northrup v. Itg Insurance Agency LLC et al

Middle District of Florida, flmd-8:2017-cv-01890

MOTION to Certify Class by John Northrup.

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3 PageID 310 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION John Northrup, Individually and on Behalf of § a Class of Similarly Situated Individuals, § Case No. 8:17-cv-1890-T-36JSS § Plaintiff, § § vs. § § Independent Truckers Group, Inc., David E. § Lindsey, Innovative Health Insurance § Partners, LLC, and Cyberx Group, LLC, § § Defendants. § § PLAINTIFF JOHN NORTHRUP'S MOTION FOR CLASS CERTIFICATION Plaintiff John Northrup, on behalf of himself and all others similarly situated, moves for class certification. In support, Plaintiff states as follows: I. INTRODUCTION This is a relatively simple case. Defendants obtained a database of truck drivers' mobile phone numbers and engaged in a text message advertising campaign trying to sell their services to the truck drivers in the database. Without the consent of the truck drivers, Defendants used an automatic telephone dialing system that sent thousands of text messages within a couple of hours in clear violation of the TCPA. Truck drivers' information (often including their cell phone numbers) is publicly available from the website of the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA). FMCSA maintains information regarding truck drivers and makes it available to the public for purposes of public safety via its website, https://safer.fmcsa.dot.gov, and not for purposes of allowing marketers to pester and distract 3 PageID 311 truck drivers by spamming their cell phones with automatically generated marketing text messages. The TCPA is designed to protect the public from unsolicited marketing text messages like those sent by Defendants to Plaintiff and the class members. Defendants have produced records identifying the mobile phone numbers to which the text messages were delivered, thus clearly defining the class. At this point in the litigation, the Court is not required to make any decisions regarding the merits of Plaintiff's claims or which Defendants may be liable, but rather must only decide whether the Rule 23 criteria for class certification has been met. The Court should grant class certification because all elements of Rule 23 are clearly satisfied. II. TCPA CASES ARE PARTICULARLY SUITED FOR CLASS ACTIONS "Class certification is normal in litigation under [the TCPA], because the main questions… are common to all recipients." Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 998 (8th Cir. 2016), quoting Ira Holtzman, C.P.A. & Assoc., Ltd. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013); also see Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1045 (9th Cir. 2012) (affirming class certification). The "large number of claims, along with the relatively small statutory damages, the desirability of adjudicating these claims consistently, and the probability that individual members would not have a great interest in controlling the prosecution of these claims, all indicate that [a] class action would be the superior method of adjudicating" claims under TCPA. C-Mart, Inc. v. Metro. Life Ins. Co., 299 F.R.D. 679, 691 (S.D. Fla. 2014), quoting Hicks v. Client Servs., Inc., 2008 WL 5479111, *10 (S.D. Fla. Dec. 11, 2008). At least fifty courts had certified TPCA class actions as of 2010. Karen S. Little, L.L.C. v. Drury Inns, Inc., 306 S.W.3d 577, 584 n. 5 (Mo. Ct. App. 2010). Since that time, courts have continued to certify TCPA class actions. See e.g. Palm Beach Golf Ctr.-Boca, Inc. 311 F.R.D. at 2 3 PageID 312 700.1 The class should be certified if it meets the four requirements of Rule 23(a), and at least one subsection of Rule 23(b). See Fed. R. Civ. P. 23; Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321-22 (11th Cir. 2008). In this case, Plaintiff seeks certification under Rule 23(b)(3). See Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011). Plaintiff's proposed class meets all of these requirements.2 1 Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, 2014 WL 7366255, at *28 (S.D. Fla. Dec. 23, 2014); Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674 (S.D. Fla. 2013); Johnson v. Yahoo!, Inc., 14-cv-2028, 2016 WL 25711, at *1 (N.D. Ill. Jan. 4, 2016); Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 12-cv-05105, 2016 WL 5390952, at *1 (N.D. Ill. Sept. 27, 2016), Johnson v. Navient Sols., Inc., 315 F.R.D. 501 (S.D. Ind. 2016); Lafollette v. Liberty Mut. Fire Ins. Co., 2:14-cv-04147-NKL, 2016 WL 4083478, at *1 (W.D. Mo. Aug. 1, 2016); Dr. Robert L. Meinders D.C., Ltd. v. Emery Wilson Corp., 14-cv- 596-SMY-SCW, 2016 WL 3402621, at *1 (S.D. Ill. June 21, 2016); Labrier v. State Farm Fire & Cas. Co., 315 F.R.D. 503, 523 (W.D. Mo. 2016); Abdeljalil v. General Electric Capital Corp., 306 F.R.D. 303, 305 (S.D. Cal. 2015); Booth v. Appstack, Inc., 2015 WL 1466247, at *1 (W.D. Wash. Mar. 30, 2015); Ikuseghan v. Multicare Health Sys., C14-5539 BHS, 2015 WL 4600818, at *1 (W.D. Wash. July 29, 2015); Ikuseghan v. Dish Network L.L.C., 311 F.R.D. 384 (M.D.N.C. 2015); Bee, Denning, Inc. v. Capital Alliance Group, 301 F.R.D. 614 (S.D. Cal. 2015); Stemple v. QC Holdings, Inc., 12-CV-01997-BAS WVG, 2014 WL 4409817, at *1 (S.D. Cal. Sept. 5, 2014); Chapman, 747 F.3d at 491; Stern v. DoCircle, Inc., SACV 12-2005 AG JPRX, 2014 WL 486262, at *1 (C.D. Cal. Jan. 29, 2014); Kristensen, 12. F.Supp.3d at 1292; Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014); Knutson v. Schwan's Home Serv., 3:12-CV-0964-GPC-DHB, 2013 WL 3746118, at *1 (S.D. Cal. July 15, 2013); Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292 (N.D. Cal. 2013); Agne v. Papa John's Int'l, 286 F.R.D. 559, 568 (W.D. Wash. 2012) (affirming district court's certification); Mitchem v. Illinois Collection Service, 271 F.R.D. 617, 620 (N.D. Ill. 2011). 2 The class certification decision is made apart from deciding the merits. "[A] court should not determine the merits of a claim at the class certification stage." Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1358 (11th Cir. 2009). Instead, courts should only consider the merits "to the degree necessary to determine whether the requirements of Rule 23 will be satisfied." Id. (quoting Heffner v. BSBC of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006)). 3 3 PageID 313 III. PREREQUISITES REQUIRED BY RULE 23 AND LOCAL RULE 4.04 As a threshold issue, Plaintiff must demonstrate that the proposed class is "adequately defined and clearly ascertainable." Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012). Assuming the class is ascertainable, Plaintiff must then prove Rule 23(a)'s prerequisites to class certification: (1) the class must be "so numerous that joinder of all members is impracticable" ("numerosity"); (2) there must be "questions of fact or law common to the class" ("commonality"); (3) "the claims or defenses of the representative parties must be typical of the claims or defenses of the class" ("typicality"); and (4) the named representative must "fairly and adequately protect the interests of the class" ("adequacy of representation"). See Fed. R. Civ. P. 23(a). After meeting the requirements of Rule 23(a), the party must satisfy at least one of the provisions of Rule 23(b). Local Rule 4.04 requires Plaintiff to include a detailed description or definition of the class, the number of persons in the class, and a means of providing and defraying the cost of class notice. "Evidentiary proof is required to show compliance with Rule 23 [and t]he party seeking class certification must prove compliance by a preponderance of the evidence." In re Photochromic Lens Antitrust Litig., 2014 U.S. Dist. LEXIS 46107, at *30 (M.D. Fla. Apr. 3, 2014)."[I]n the context of determining class certification, the evidence rules are relaxed because it is a determination made by the court, not a jury." Shamblin v. Obama, No. 8:13-cv-2428-T- 33TBM, 2015 U.S. Dist. LEXIS 54849, at *10 (M.D. Fla. Apr. 27, 2015).3 3 See also City of Rome v. Hotels.com, LP, No. 4:05-CV-249, 2011 U.S. Dist. LEXIS 158580, at *21 n.7 (N.D. Ga. Mar. 21, 2011) ("Given the preliminary nature of the proceeding, the Court agrees with courts that have concluded the Federal Rules of Evidence should be loosely applied"); Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273, 279 (S.D. Ala. 2006) 4 3 PageID 314 IV. DESCRIPTION OF THE CLASS A. Class Definition The class is defined as: all persons within the United States who received a text message from a Defendant, as listed in documents produced in this case, identified as CXG028 – 32, and attached as Exhibits B through F to Cory Fein's declaration. B. Number of Persons in the Class There are 2,717 persons in the class, as described in more detail below. C. Means of Providing and Defraying Cost of Notice Plaintiff's counsel will pay the cost of notice required by Rule 23(c)(2), to be recovered as an expense of litigation from Defendants if Plaintiff is successful. V. THE CLASS SHOULD BE CERTIFIED A. Ascertainability The Class is objectively defined so that the members of the Class are ascertainable (and have been ascertained) by reference to the records of Defendants who sent the text messages at issue. Defendants admit that they maintain records that will identify the class members. (See Exhibit 3, Fein Decl. ¶25, and Exhibit A, CyberX Resp to RFA 10.) Defendants produced documents identifying the class members. A document identified as CXG028 (Fein Decl. ¶26, and Exhibit B) demonstrates that, on June 30, 2017, from 15:15 p.m. ("Federal Rules of Evidence are not stringently applied at the class certification stage because of the preliminary nature of such proceedings. Courts confronted with Rule 23 issues may consider evidence that may not ultimately be admissible at trial."); Burnell v. Swift Transp. Co of Ariz., LLC, No. 10-809, 2016 U.S. Dist. LEXIS 181372, at *20 (C.D. Cal. May 4, 2016) ("[C]ourts have held that on a motion for class certification, the evidentiary rules are not strictly applied and courts can consider evidence that may not be admissible at trial." collecting cases). 5 3 PageID 315 to 15:30 UTC time, Defendants sent the identical "Hate Obama Care" text4 to 861 phone numbers. Column K lists whether the text messages were inbound or outbound (861 were outbound, and 3 were inbound). Column B lists the recipients' phone numbers, and Column D states whether or not the text message was delivered to the recipient. The phone numbers listed include area codes from throughout the country. Four additional spreadsheets similarly identify text messages sent as part of this campaign. These spreadsheets are summarized below. Document Date (Exhibit) Time Total Texts Inbound Outbound Received CXG028 6/30/17 15:15 - 15:30 (B) 864 3 861 425 CXG029 6/30/17 15:30 - 16:00 (C) 1,758 11 1,747 909 CXG030 6/30/17 16:00 - 16:07 (D) 282 2 280 149 CXG031 6/30/17 18:00 - 18:30 (E) 1,740 5 1,735 694 CXG032 6/30/17 18:30 -18:52 (F) 1,131 9 1,122 540 CXG033 6/30/2017 - (G) 7/4/2017 15 15 - - TOTAL 5,745 2,717 The class will be limited to those 2,717 persons identified as having the text message delivered to them with no error code. The mobile phone number of Plaintiff John Northrup is listed in Line 525 of the spreadsheet identified as CXG032, demonstrating that the "Hate Obama Care" text was delivered to Plaintiff on June 30, 2017 at 18:40:08 UTC.5 It shows that the text was delivered, with no error codes. 4 The text stated: "Hate the high price of Obama Care? Call for a free $250 rewards card and free healthcare quote. TRUCKER plans start less than $59 a month 214-396-6822." 6 3 PageID 316 Accordingly, the class members are readily identified as the owners of the mobile phones who received the 2,717 text messages, including Plaintiff, as identified in documents produced by Defendants and identified as CXG028 – 32. (See Exhibit 3, Fein Decl. ¶28.) Defendants confirmed to Plaintiff's counsel that these documents evidenced text messages that were sent by Defendants. Id. Defendants confirmed, via email on April 6, 2018, that these documents demonstrate two text campaigns executed by CyberX: (1) one campaign that sent approximately 2,800 messages to trucking companies based on a contact list Defendants obtained from FleetSeek, "a premier lead sourcing and lead generation product, leveraging a proprietary database of over half a million North American trucking operations and contacts used by sales and marketing professionals from thousands of leading edge products and service providers to the trucking industry." (See www.fleetseek.com/marketing, accessed on April 10, 2018); and (2) a second campaign involving an approximate 2,700 text messages "to new companies on the same list." (Fein Decl. ¶28.) There is no reason to exclude those who received texts as part of the second campaign from the class. Defendants' documents (Exhibits B – F, CXG028 – 32) demonstrate that all class members from both campaigns received the same "Hate Obama Care" text message, sent by the same company, on the same day, during the same time period, for the same purpose, advertising products for the same company. Accordingly, Plaintiff proposes all 2,717 persons who received 5 UTC is Coordinated Universal Time. 18:40:08 UTC equates to 2:40:08 p.m. Eastern, which is when Plaintiff received the text message, as alleged in the Complaint. (Dkt. 19 ¶28.) 7 3 PageID 317 text messages, as evidenced in these documents, be included within the class.6 Furthermore, Defendants confirmed, via email on April 9, 2018, that any documents that could possibly demonstrate consent to receive the text messages had been produced. Plaintiff has reviewed all documents produced by Defendants and there were no records that any member of the putative class consented to receive a text from a Defendant. (Exhibit 3, Fein Decl. ¶30.) B. Numerosity – Rule 23(a)(1) The numerosity requirement imposes a "generally low hurdle" and a plaintiff need not show the precise number of members of the class. Herman v. Seaworld Parks & Entm't, Inc., 320 F.R.D. 271 (M.D. Fla. 2017) (citing Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 311 F.R.D. 688, 695 (S.D. Fla. 2015).) The general rule "in the Eleventh Circuit is that 'less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.'" Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 684 (S.D. Fla. 2013) (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986)). An estimated number is sufficient. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009) (plaintiffs need not make a precise showing of the number of members in the class but must provide the court with some means to make a factual determination that the numerosity requirement is met). Pursuant to Defendants' admissions, the number of persons in the class will be between 1,000 and 10,000. (Exhibit A, CyberX Resp to RFA 8 and 9). Plaintiff has identified 2,717 class 6 In the alternative, if Defendants can demonstrate a sufficient reason why the class should be limited to only the first campaign that included the Plaintiff, Plaintiff would advocate a certification of that class, which would include 805 class members. (See Exhibit 3, Fein Dec. ¶29.) 8 3 PageID 318 members from records produced by Defendants, as explained above. This easily satisfies the numerosity requirement. Even if Defendant prevails in their argument that the class should be limited to one of the two text campaigns, the 805 class members still easily satisfies numerosity. C. Common Questions of Law and Fact – Rule 23(a)(2) The commonality test presents a "low hurdle" for plaintiffs, Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1356 (11th Cir. 2009), because "for purposes of Rule 23(a)(2) even a single common question will do." Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016). There are several common questions in this case, including: (a) Whether Defendants or their agents sent text messages which were delivered to the 2,717 persons listed in Defendants' documents; (b) Whether the texts were sent without the recipients' prior express consent; (c) Whether the systems used to send the text messages constituted automatic telephone dialing systems under the TCPA; (d) Whether the violations of the TCPA were willful or knowing, such that the award should be increased up to three times pursuant to 47 USC §227(b)(3)(c); (e) Which Defendants should be liable for the statutory penalties set forth by the TCPA; (f) Whether Defendants and their agents should be enjoined from engaging in such conduct in the future; and (g) the amount of reasonable attorneys' fees and other litigation costs reasonably incurred. D. Typicality of Plaintiff's Claim – Rule 23(a)(3) The Class meets the typicality requirement of Rule 23(a)(3). "Typicality requires a showing that the plaintiffs' individual claims are typical of the claims of the class members. The same interest must be shared and same type of injury must be suffered by the plaintiffs and the class members." AA Suncoast Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., No. 8:15- cv-2543, 2017 U.S. Dist. LEXIS 73993, at *20 (M.D. Fla. May 16, 2017) (citing Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008). "The named plaintiff's claims do not 9 3 PageID 319 need to be identical to the claims of the absent class members, but they should share the same essential characteristics such that it would make sense for the plaintiff to act as the class's representative." Baez v. LTD Fin. Servs., L.P., No. 6:15-cv-1043, 2016 U.S. Dist. LEXIS 74788, at *7 (M.D. Fla. June 8, 2016) (citation omitted). The named Plaintiff's claim is typical of those of the other class members because it is the exact same legal claim based on the same facts as the rest of the Class members. Plaintiff's cell phone number is included in the documents identifying the class members in the same manner as all 2,717 class members. Typicality is therefore easily satisfied. E. Adequacy of Named Plaintiff – Rule 23(a)(4) "This adequacy of representation analysis encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action." Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation and internal quotation marks omitted). There are no perceptible conflicts of interest between Plaintiff and class members; to the contrary, their economic interests and litigation objectives are fully aligned. Plaintiff is committed to adequately prosecute this action and his claim is not presently or potentially in conflict with any members of the class. He seeks statutory damages as a result of Defendants' unlawful text message campaign. He is able and willing to participate in this litigation. (See Declaration of John Northrup, attached as Exhibit 1.) The same is true for Plaintiff's counsel of record, who are well-qualified to represent classwide interests here. Cory Fein and Seth Lehrman are both experienced and capable attorneys with a long history of successfully representing plaintiffs and class members in class 10 3 PageID 320 actions. See Lehrman Declaration, attached as Exhibit 2, and Fein Declaration, attached as Exhibit 3 at ¶¶1-22. See also Sistrunk v. Titlemax, Inc., No. 5:14-CV-628, 2016 U.S. Dist. LEXIS 189897, at *4 (W.D. Tex. Nov. 15, 2016) (finding that Cory Fein will fairly and adequately represent the interests of the class); and Keegan v. Am. Honda Motor Co, No. 10-cv- 09508, 2014 U.S. Dist. LEXIS 197404, at *106 (C.D. Cal. Jan. 21, 2014) (finding that Cory Fein fairly and adequately represented the class for purposes of entering into and implementing settlement). F. Predominance of Common Questions and Superiority – Rule 23(b)(3) Certification of a class under Fed. R. Civ. P. 23(b)(3) is appropriate in that Plaintiff and the Class members seek statutory damages, common questions predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy. A class action will cause an orderly and expeditious administration of the Class members' claims and economies of time, effort and expense will be fostered and uniformity of decisions will be ensured. Moreover, the individual Class members are unlikely to be aware of their rights and not in a position (either through experience or financially) to commence individual litigation against Defendants. The questions of law and fact to the Class predominate over questions which may affect individual Class members, including the following: (a) Whether Defendants or their agents sent text messages which were received by the 2,717 persons listed in Defendants' documents; (b) Whether the texts were sent without the recipients' prior express consent; (c) Whether the systems used to send the text messages constituted automatic telephone dialing systems under the TCPA; (d) Whether the violations of the TCPA were willful or knowing, such that the award should be increased up to three times pursuant to 47 USC §227(b)(3)(c); (e) Which Defendants 11 3 PageID 321 should be liable for the statutory penalties set forth by the TCPA; (f) Whether Defendants and their agents should be enjoined from engaging in such conduct in the future; and (g) the amount of reasonable attorneys' fees and other litigation costs reasonably incurred. Because of the unique nature of the statutory claim asserted in this litigation, wherein Plaintiff is not required to prove any individual issue (such as reliance, causation or monetary loss), there are no individual issues that could prevent a finding that the common issues, listed above, predominate. Absent a class action, the members of the Class will likely not receive the statutory damages to which they are entitled under the TCPA. A class action is a superior method for the fair and efficient adjudication of this controversy. Class-wide damages are essential to induce Defendants to comply with federal law. The interest of Class members in individually controlling the prosecution of separate claims against Defendants is small because the maximum statutory damages in an individual action for violation of the TCPA are minimal. Management of these claims as a class action is likely to present significantly fewer difficulties than pursuing them as several individual claims. VI. CONCLUSION WHEREFORE, Plaintiff requests that the Court certify the class, appoint Plaintiff as class representative and Plaintiff's counsel as class counsel, order the parties to confer on a class notice plan, and for such other relief as is justified. 12 3 PageID 322 Dated: April 13, 2018 Respectfully submitted, /s/ Cory S. Fein Cory S. Fein (Pro Hac Vice) CORY FEIN LAW FIRM 712 Main St., #800 Houston, TX 77002 Telephone: (281) 254-7717 Facsimile: (530) 748-0601 E-mail: cory@coryfeinlaw.com Seth M. Lehrman (Fla. Bar No. 132896) EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 E-mail: seth@epllc.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on April 13, 2018, this motion was served via this Court's ECF system and thereby served on all counsel of record. /s/ Cory S. Fein Cory S. Fein 13