Brian Clark v. Via Renewables, Inc.

• Court: District Court, N.D. California
• Decided: October 21, 2025
• Docket: 3:24-cv-00568
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN CLARK, Case No. 24-cv-00568-JSC

8 Plaintiff, ORDER DENYING RENEWED 9 v. MOTION FOR CLASS CERTIFICATION 10 VIA RENEWABLES, INC., Re: Dkt. No. 68 Defendant. 11

12 13 Plaintiff Brian Clark, on behalf of four proposed classes, alleges violations of the 14 Telephone Consumer Protection Act (“TCPA”).1 (Dkt. No. 23.) Plaintiff contends his residential 15 phone number is on the federal Do Not Call Registry and Defendant, Via Renewables, Inc., called 16 his phone number ten times and left identical pre-recorded voice messages, all in violation of the 17 TCPA. (Id. ¶ 7, 17-20.) The Court previously denied Plaintiff’s motion for class certification 18 without prejudice and ordered Plaintiff to make an offer of proof as to whether amendment of the 19 class would be futile. (Dkt. No. 61.) Plaintiff made an offer of proof, and this renewed motion for 20 class certification followed. (Dkt. No. 68.) 21 Having carefully reviewed the parties’ briefing, and having had the benefit of oral 22 argument on October 16, 2025, the Court DENIES the motion. Plaintiff has not shown his claims 23 or defenses are typical of the class, that he is an adequate representative of the class, or that 24 common issues of law or fact predominate. 25 // 26 // 27 1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY 2 A. The Amended Complaint’s Allegations 3 “[Defendant] is engaged in a scheme to sell natural gas and energy services via cold calls 4 to residential phone numbers on the protected federal Do Not Call Registry which [Defendant] 5 calls without prior express written consent, through their agents and affiliates, using a pre- 6 recorded message.” (Dkt. No. 23 ¶ 7.) “[Defendant] calls various numbers in the United States to 7 sell [Defendant]’s energy services without regard to whether those numbers are on the Do Not 8 Call Registry or not, using a pre-recorded message regardless of whether the number is residential 9 or not.” (Id. ¶ 9.) Further, Defendant does not “check the federal Do Not Call Registry before 10 making these calls nor engage in any Do Not Call Registry compliance, nor confirm the number is 11 not a residential number.” (Id. ¶ 10.) Defendant conducts “cold calls” nationally “with no regard 12 for whether these numbers have been registered on the National Do-Not-Call Registry (“DNC”) or 13 not.” (Id. ¶ 11.) 14 Plaintiff is the only named plaintiff in this putative class action. His home phone number 15 “has been tariffed as a residential line since he was assigned it by the phone company more than 16 ten (10) years ago.” (Id. ¶ 14.) On December 22, 2007, he “registered his residential line on the 17 National ‘Do-Not-Call’ Registry,” and maintained it on the Registry to the present day. (Id. ¶ 15.) 18 In March 2023, Defendant “made ten (10) calls to [Plaintiff’s] home phone number,” using 19 various Caller ID numbers. (Id. ¶ 13.) For each call he “received a voice message that was from a 20 ‘Michelle’ who was allegedly calling about [his] natural gas bill and requested return call to 888- 21 928-3199.” (Id. ¶ 17.) “The messages use nearly identical wording and the voice has the same 22 monotone speaking structure in every message which shows that the calls were pre-recorded 23 messages and not a call from a live person.” (Id. ¶ 19.) Two days after the last of these calls, 24 Plaintiff “called the 888-928-3199 number that was present in all of the voice messages and was 25 immediately connected to [Defendant].” (Id. ¶ 20.) 26 B. How Defendant Claims It Obtains Consent 27 Defendant’s Vice President of Sales, Julio Astorga, attests Defendant uses two types of 1 contacted by [it].” (Dkt. No. 78-3 ¶ 8.) Defendant’s “contracts with [website] vendors require 2 valid express written consent be provided.” (Dkt. No. 78-3 ¶ 9.) “These vendors do not just work 3 for [Defendant] but with any number of other companies for whom they also generate consumer 4 leads.” (Id. ¶ 10.) Accordingly, “these vendors use hundreds of different URLs to acquire the 5 lead information and forms sent to [Defendant]. Inbounds.com … is one such vendor. 6 Bestamericansavings.com is one such URL.” (Id.) Defendant receives and maintains this lead 7 information through Active Prospect, an “online software repository for vetting and storing lead 8 [data].” (Dkt. No. 42-3 6:8-10.) 9 For each consumer lead, Active Prospect stores a consent record called a ‘TrustedForm.’ 10 (Dkt. No. 78-3 ¶ 14.) A TrustedForm script is installed on websites to track “[a]nything the visitor 11 might be doing on that page.” (Dkt. No. 78-11 at 6:25-7:1-2, 9:3-14.) The script “listens for events 12 as they take place in the browser,” like when “a consumer checks a box,” “inputs … a form with 13 their information,” “move[s] their mouse[,] or click[s] on something.” (Dkt. No. 68-7 at 11:13-17.) 14 TrustedForm “compiles … a log of [these] events” with metadata about the transaction, including 15 “a timestamp of when the lead was captured” and “the IP address of the person.” (Id. at 8:15-19, 16 11:22.) Then, “TrustedForm will issue a certificate” containing this information so “whoever 17 receives that lead has independent verification of when and where that consumer filled out the 18 form, and also gives them a visual … session replay of what happened[.]” (Id. at 7:6-12.) 19 A session replay is a visual rendering of “what the consumer saw on that page, [and] how 20 they interacted with that page.” The replay is “a best guess in a visualization of data points that 21 [TrustedForm] obtained.” (Id. 13:9-11.) “This visual rendering is helpful for demonstrating 22 approximate times that it took for a consumer to information[.] [I]t’s useful to tell us what 23 information was entered, what key strokes took place, and what the websites looked like, but 24 might not be 100 percent accurate in terms of tracking exactly what the direction that the mouse 25 moved at any given moment[.]” (Id. 13:18-24.) Additionally, in some instances, the visual 26 rendering will not show the customer clicking the ‘register’ button to submit the completed form 27 even though the TrustedForm script logged the customer doing so. (Dkt. No. 68-7 at 15:3-25, 1 The second type of vendor Defendant works with is “a call center vendor” that “make[s] 2 calls to consumers who have consented to receive calls.” (Dkt. No. 78-3 ¶ 12.)

3 One such vendor is Energy BPO, Corp. (‘Energy BPO’). All calls made by Energy BPO were contractually obligated to be made with 4 consent—calls could not have been placed by Energy BPO unless a consent record was first received by [Defendant], stored in its account 5 with Active Prospect, and then transferred to Energy BPO. 6 (Id. ¶ 13.) Indeed, Energy BPO, attests “Energy BPO Corp. would only attempt to sell 7 [Defendant’s] products from phone numbers that were provided by [Defendant].” (Dkt. No. 68-3 8 ¶¶ 3-5.) 9 C. Evidence as to Plaintiff’s Consent 10 Defendant asserts Plaintiff completed a webform providing his consent to be contacted. 11 “On March 3, 2023, Plaintiff’s name and contact information was submitted via a webform on 12 BestAmericanSavings.com.” (Dkt. No. 78-3 ¶ 21.) Defendant contends this webform contains the 13 following language below the “Register” button:

14 By submitting this form, I expressly consent to be contacted by any partner in the AcquireCrowd Partner Network with materials for 15 services via direct or electronic mail, phone calls to the number provided, text/SMS messages via automatic or automated dialing 16 system(s), and pre-recorded messages. Consent is not a condition of purchase and may be revoked at any time. 17 (Dkt. No. 78-6 at 2.)2 “As a result of that webform submission, [Defendant] transmitted the lead 18 record to Energy BPO, who made the challenged calls to Plaintiff.” (Dkt. No. 78-3 ¶ 21.) 19 “Plaintiff’s webform submission included an Active Prospect TrustedForm, including a 20 Certificate of Authenticity, Event Log, [and] Session Replay[.]” (Dkt. No. 23.) The Certificate of 21 Authenticity attached to Plaintiff’s webform describes a 46-second visit to the website 22 https://www.bestamericansavings.com at 9:56 am on March 3, 2023 and contains Plaintiff’s date 23 of birth. (Dkt. 78-4; Dkt. No. 79-1 at 1, 3.) The Certificate also says the visitor used a Google 24 Chrome browser on a Windows 7 operating system and did so from Lancaster, California. (Id.) 25

26 2 Plaintiff objects to Exhibit A, Dkt. No. 78-2, filed in support of Defendant’s Opposition brief. (Dkt. No. 81-2.) This order does not rely on this exhibit, so the Court SUSTAINS Plaintiff’s 27 objection, notwithstanding Plaintiff’s failure to comply with N.D. Cal. Civil Local Rule 7-3(c) 1 The session replay of the website visit displays a completed form with contact information, 2 including a first and last name, email address, street address, phone number, and date of birth. (Id.) 3 A screenshot of the replay contains the name briansean clark and Plaintiff’s residential phone 4 number. (Id.; see Dkt. No. 1 ¶ 13). 5 Plaintiff swears he did not visit the bestamericansavings.com website. In his declaration, 6 Plaintiff attests: “I never gave anyone from [Defendant] or Energy BPO permission to call me, and 7 I did not fill out any online inquiry form, as they allege.” (Dkt. No. 68-4 ¶ 16.) At his deposition, 8 Plaintiff testified under oath he “never visited the website” and has “never seen the privacy 9 policy” on the website. (Dkt. No. 78-12 at 16:24-25, 17:1-8.) 10 D. Plaintiff’s First Motion for Class Certification 11 Plaintiff asserts one cause of action for two different TCPA violations: (1) calling numbers 12 on the national Do-Not-Call Registry (“DNC Registry” or the “Registry”); and (2) making 13 prerecorded marketing calls to residential numbers. (Dkt. No. 23 ¶ 5.) Plaintiff initially moved to 14 certify the following nationwide subclasses: 15 Subclass No. 1 (“DNC Subclass”) 16 All persons and entities located within the United States of America who claim to be able to provide a phone bill or statement showing 17 they were a residential telephone subscriber and that their number was registered on the National Do-Not-Call Registry to whose residential 18 telephone Defendant and/or its agents transmitted two or more telemarketing calls in one calendar year without prior express written 19 consent from the called party or an ‘existing business relationship’ at any time from January 30, 2020 to the present, including up to and 20 through trial.

21 Subclass No. 2 (“Prerecord Subclass”) All persons and entities located within the United States of America 22 to whose residential telephone line Defendant and/or its agents transmitted a call using a prerecorded voice without prior express 23 written consent from the called party at any time from January 30, 2020 to the present, including up to and through trial. 24 (Dkt. No. 37-1 at 12.) Defendant opposed certification (Dkt. No. 42) and sought to exclude 25 Plaintiff’s expert’s report under Federal Rule of Evidence 702. (Dkt. No. 43-3.) Defendant’s 26 principal contention was that Plaintiff’s class definitions, which included the consent issue, 27 created improper fail safe classes. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods 1 LLC, 31 F.4th 651, 669 n.14 (9th Cir. 2022) (holding a court may not “create a ‘fail safe’ class that 2 is defined to include only those individuals who were injured by the allegedly unlawful conduct.”) 3 (citing Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1138 n.7 (9th Cir. 2016)). 4 On March 25, 2025, the Court heard argument on Plaintiff’s motion, focusing primarily on 5 the consent issue and whether Plaintiff’s definitions created fail safe classes that could be 6 redefined without being overbroad. At the hearing, the Court noted that although consent in a 7 TCPA case is an affirmative defense, Plaintiff “actually pled the lack of consent in [his] class 8 definition.” So, Plaintiff had the burden of proving class certification was warranted 9 notwithstanding the consent issue. (Dkt. No. 61 at 3:20-4:2.) Plaintiff argued the website consent 10 was insufficient as a matter of law as to all putative class members, but he provided no evidence— 11 or law—to support this assertion. (Id. at 4:25-5:7.) Defendant complained Plaintiff attacked the 12 consent as to only one of many websites Defendant uses to obtain consents— 13 Bestamericansavings.com—even though Defendant had advised Plaintiff it uses many websites. 14 (Id. at 5:14-6:11.) The Court concluded that based on the then-current record Plaintiff had not met 15 his class certification burden given the consent issue. (Id. at 7:25-8:4.) Plaintiff then offered to 16 “delete the class definition part about the defense,” (Dkt. No. 61 at 12:2-4.), but the Court was 17 skeptical this deletion would resolve the issue. Further, the Court observed: “I don’t know how 18 you would [define a class without requiring consent]. I don’t know. I don’t think you can just take 19 it out because then we might have a class that is 95 percent of people who don’t have any 20 standing; right?” (Dkt. No. 61 at 9:11-20.) The Court further cautioned Plaintiff’s unique defense 21 to consent—that someone else must have completed Defendant’s consent form given he never 22 visited Bestamericasavings.com—may make him atypical for purposes of Rule 23. (Id. at 10:5-9.) 23 Accordingly, the Court ruled: “I’m going to deny the motion for class certification for the 24 reasons we’ve just discussed. And what I want you to do is then come make an offer of proof as to 25 what your new class definition would be and how you believe it would satisfy.” (Id. at 12:12-16.) 26 Following Plaintiff’s offer of proof, the Court permitted Plaintiff to file the pending renewed 27 motion for class certification. 1 E. Plaintiff’s Renewed Motion for Class Certification 2 Plaintiff’s renewed motion offers four sub-classes. Plaintiff outlines two amended ‘broad’ 3 sub-classes and, in the alternative, two new ‘narrow’ sub-classes. 4 Broad DNC Sub-Class No. 1 5 All persons within the United States of America who have or had a residentially 6 subscribed telephone number registered on the National Do-Not-Call Registry and whose residentially subscribed number appears on call logs showing Energy BPO 7 Corp. (“Energy BPO”) outbound calls with campaign designations showing those numbers were called to sell Spark Energy services (e.g. Ex. X (convoso), column R, 8 Campaign Name of “Spark Energy – CA”, or Ex. X (export), column F Campaign ID of “1005” or “Spark_1005”) to whose telephone number Energy BPO 9 transmitted two or more telemarketing calls in one calendar year at any time from 10 January 30, 2020 to the present, including up to and through trial.

11 Broad Prerecord Sub-Class No. 2 All persons within the United States of America who have or had a residentially 12 subscribed telephone number and whose residentially subscribed number appears on call logs showing Energy BPO calls with campaign designations showing those 13 numbers were called to sell Spark Energy services (e.g. Ex. X (convoso), column R, 14 Campaign Name of “Spark Energy – CA”, or Ex. X (export), column F Campaign ID of “1005” or “Spark_1005”) to whose telephone number Energy BPO 15 transmitted a prerecorded message at any time from January 30, 2020 to the present, including up to and through trial. 16 Narrow DNC Sub-Class No. 1 17 All persons within the United States of America who have or had a residentially 18 subscribed telephone number they registered on the National Do-Not-Call Registry and whose residentially subscribed number appears on both call logs showing 19 Energy BPO Corp. (“Energy BPO”) outbound calls (e.g., Convoso call logs) and the Acquire Crowd lead records showing the phone number and other lead 20 information was allegedly garnered from the www.bestamericansavings.com website (e.g., column N) to whose telephone number Energy BPO transmitted two 21 or more telemarketing calls in one calendar year at any time from January 30, 22 2020 to the present, including up to and through trial.

23 Narrow Prerecord Sub-Class No. 2 All persons within the United States of America who have or had a residentially 24 subscribed telephone number and whose residentially subscribed number appears on both call logs showing Energy BPO Corp. (“Energy BPO”) outbound calls 25 (e.g., Convoso call logs) and the Acquire Crowd lead records showing the phone 26 number and other lead information was allegedly garnered from the www.bestamericansavings.com website (e.g. column N) to whose telephone 27 number Energy BPO transmitted a prerecorded message at any time from January 1 (Dkt. No. 68-1 at 11-12.) The “broad” class definitions mirror Plaintiff’s earlier definitions, except 2 the new definitions reference call logs disclosed by Defendant and exclude the “without prior 3 express written consent” language. (Id.; Dkt. No. 37-1, at 12.) The “narrow” class definitions 4 contain additional language: “the Acquire Crowd lead records show[] the [class member’s] phone 5 number and other lead information was allegedly garnered from the 6 www.bestamericansavings.com website[.]” (Dkt. No. 68-1 at 11-12.) The narrower class 7 definitions limit the class to people whose leads were garnered from the bestamericansavings.com 8 website, as opposed to other URLs Defendant’s vendors use. 9 DISCUSSION 10 “Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal 11 court.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 (9th Cir. 2017). “Before it can 12 certify a class, a district court must be ‘satisfied, after a rigorous analysis, that the prerequisites’ of 13 both Rule 23(a) and 23(b)(3) have been satisfied.” Olean Wholesale Grocery Coop., 31 F.4th at 14 664. Under Rule 23(a), a case is appropriate for certification if: (1) the class is so numerous that 15 joinder of all members is impracticable; (2) there are questions of law or fact common to the class; 16 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the 17 class; and (4) the representative parties will fairly and adequately protect the interests of the class. 18 Fed. R. Civ. P. 23(a). Rule 23(b)(3) requires the Court to find “the questions of law or fact 19 common to class members predominate over any questions affecting only individual members, 20 and that a class action is superior to other available methods for fairly and efficiently adjudicating 21 the controversy.” Fed. R. Civ. P. 23(b)(3). “[P]laintiffs wishing to proceed through a class action 22 must actually prove—not simply plead—that their proposed class satisfies each requirement of 23 Rule 23, including (if applicable) the predominance requirement of Rule 23(b)(3),” and that proof 24 must be by a preponderance of the evidence. Olean Wholesale Grocery Coop., 31 F.4th at 664. 25 A. Defendant’s Consent Defense and Class Certification 26 Under the TCPA, “express consent” is an affirmative defense to a TCPA claim alleging 27 unsolicited phone calls. Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1044 (9th Cir. 1 Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018). Plaintiff bears the 2 burden of proving class certification is appropriate, and “the burden of proving consent strongly 3 affects the analysis.” Id. In deciding if class certification is warranted, a court considers the 4 consent defenses the defendant “has advanced and for which it has provided supporting evidence.” 5 Id. at 932. 6 Here, Defendant asserts it requires its vendors to obtain consent before contacting people, 7 and Defendant tailors its evidence to show the consent of Plaintiff, members of the broad sub- 8 classes, and members of the narrow sub-classes. Broadly speaking, the evidence consists of 9 webforms and session replays where class members purportedly entered their contact information 10 and consented to be contacted by Defendant’s vendors. To show Plaintiff’s consent, Defendant 11 produced the webform with Plaintiff’s contact information that Defendant’s vendors received, 12 metadata about when and where the website was visited, and a session replay of the website visit. 13 (Dkt. No. 78-3 ¶¶ 21-24; Dkt. No. 78-4; Dkt. No. 79-1). Defendant also produced webforms from 14 the same website, but on different dates. Plaintiff’s purported visit occurred on March 3, 2023, so 15 Defendant produced webforms from January 16, 2023 and March 3, 2023 to show the website had 16 consent language at the time. (Dkt. No. 78-5, Dkt No. 78-6.) 17 As to the broad sub-classes, Defendant claims its vendors obtained leads through 18 “hundreds” of different URLs which had “drastically” different consent language. (Dkt. No. 78-3 19 ¶¶ 10, 31.) Thus, to show consent of the broad sub-classes, Defendant produced Certificates of 20 Authenticity from another website Defendant’s vendors used, freesamplesprousa.com. (Dkt. No. 21 78-3 ¶¶ 31-33; Dkt. No. 78-9.) Finally, the narrow sub-classes consist solely of people whose 22 information was garnered from the bestamericansavings.com website, and “[d]epending on the 23 date an individual visited bestamericansavings.com, there are multiple versions of the webform 24 they would have encountered.” (Dkt. No. 78-3 ¶ 29.) Thus, Defendant produced an example of 25 what consent language the website displayed on September 15, 2022 and metadata for other 26 signups on the website. (Dkt. No. 78-7 at 3-4). 27 // 1 B. Typicality and Adequacy 2 “[T]he typicality and adequacy inquiries tend to significantly overlap.” Woods v. Vector 3 Mktg. Corp., 2015 WL 5188682, at *12 (N.D. Cal. Sept. 4, 2015). “The test of typicality is 4 whether other members have the same or similar injury, whether the action is based on conduct 5 which is not unique to the named plaintiffs, and whether other class members have been injured by 6 the same course of conduct.” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1030 (9th Cir. 7 2012) (internal quotation marks and citation omitted). Typicality is not met when the named 8 plaintiff is “subject to unique defenses which threaten to become the focus of the litigation.” 9 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Similarly, adequacy of 10 representation requires the named plaintiff be able to “prosecute the action vigorously on behalf of 11 the class,” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), which depends on “a 12 sharing of interests between representatives and absentees.” Brown v. Ticor Title Ins., 982 F.2d 13 386, 390 (9th Cir. 1992). 14 Here, the requirements of typicality and adequacy are not met. Because Plaintiff swears he 15 did not visit the bestamericansavings.com website and provide his contact information, he cannot 16 raise arguments on behalf of absent class members who did input their contact information into a 17 website vendor used by Defendant. For example, in response to Defendant’s consent defense, 18 Plaintiff argues the consent language was not always present on the various websites, including 19 bestamericansavings.com, and even if the consent language was present, it does not constitute 20 valid consent under the TCPA. (Dkt. No. 68-1 at 19-24.) But because Plaintiff never saw the 21 bestamericasavings.com website, let alone inputted his contact information, he does not have 22 standing to challenge whether the website disclosures were sufficient to provide Defendant 23 consent to contact the absent class members. To put it another way, his attack on Defendant’s 24 consent defense—I did not visit the website and input my contact information—is not typical of 25 the consent defense of absent class members who did visit the websites and provide their contact 26 information. And, for the same reason, he is not an adequate representative of such absent class 27 members. 1 Grubhub, Inc., 13 F.4th 908 (9th Cir. 2021), is instructive. There, the named plaintiff was one of 2 two individuals to opt out of an arbitration agreement, but every putative class member entered 3 into the arbitration agreement. (Id. at *2.) The court held the named plaintiff’s “claims are not 4 typical of the putative class members, nor can he adequately represent the interests of those 5 members” because he “would be unable to credibly make several procedural unconscionability 6 arguments on behalf of the unnamed class members.” Id. at *3. The Ninth Circuit affirmed, 7 holding “[t]he district court correctly held Lawson could not satisfy the requirements in Rule 23(a) 8 because he is neither typical of the class nor an adequate representative.” Lawson, 13 F.4th at 913. 9 Same here. As Plaintiff swears he did not provide the lead-generating website with his contact 10 information, his consent defense is not typical of the putative class members who did and he 11 likewise cannot adequately represent the interest of those class members who did. 12 A court in this District has reached the same conclusion in a similar TCPA context. In 13 Berman v. Freedom Fin. Network, LLC, 400 F. Supp. 3d 964 (N.D. Cal. 2019), the named plaintiff 14 moved to certify a class of persons whom defendant contacted one or more times, in violation of 15 the TCPA. Id. at 984. There, as here, the named plaintiff had “never visited” the defendant’s 16 websites yet sought to challenge on a class-wide basis the websites’ compliance with the TCPA’s 17 consent requirements. Id. at 987–988. The district court denied a motion for class certification on 18 the grounds the plaintiff had not demonstrated typicality and adequacy because he asserted he did 19 not visit the website through which the defendant claimed to have garnered consent to be 20 contacted. The court reasoned while the plaintiff had offered “a plan for litigating the express 21 consent issue on a class-wide basis, arguing lack of contract formation based upon the uniform 22 failure of [the website vendor’s] websites to comply with the ‘signature’ and ‘clear and 23 conspicuous disclosure’ requirements under the TCPA, . . . he ha[d] not offered authority showing 24 that he can properly litigate those issues if he himself never visited the . . . websites.” Id. at 987- 25 88. And Lawson, decided after Berman, is binding Ninth Circuit authority confirming that he 26 could not. Again, same here. 27 In sum, Plaintiff has failed to show his challenge to Defendant’s advanced and supported 1 “prosecute the action vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020. 2 C. Predominance 3 Plaintiff has also not satisfied the predominance requirement of Rule 23(b)(3). 4 Predominance “focuses on the relationship between the common and individual issues in the case 5 and tests whether proposed classes are sufficiently cohesive to warrant adjudication by 6 representation.” Wang v. Chinese Daily News, 737 F.3d 538, 545 (9th Cir. 2013) (internal citation 7 omitted). Given the evidence of putative class members’ providing their contact information to 8 the lead-generating websites, and Plaintiff’s disavowal of having provided his contact information 9 to the website, Plaintiff has failed to show that common issues predominate. Plaintiff does not 10 proffer any method for determining on a class-wide basis whether a class member visited a 11 website and provided contact information; so, answering that question will be individual for each 12 class member. 13 McKesson and a subsequent case, Trenz v. On-Line Administrators, Inc., 2020 WL 14 5823565 (C.D. Cal. 2020), illustrate this point. McKesson analyzed evidence of predominance 15 with respect to multiple sub-classes and reached a different conclusion as to each sub-class. 829 16 F.3d at 932-33. McKesson found common issues predominated where, unlike here, a sub-class of 17 people provided consented through two types of agreements that had “little or no variation.” Id. at 18 932. By contrast, the court denied certification for a sub-class whose claims were “based on 19 individual communications and personal relationships” because of “[t]he variation in such 20 communications and relationships.” 3 Id. Similarly, Trenz decertified a class of TCPA plaintiffs 21 where, as here, the defendants’ evidence showed class members provided consent through 22 “privacy notices and other forms” and “the terms of the documents varied both among dealerships 23 and over time.” 2020 WL 5823545 at *7. Accordingly, the court found the defendants “advanced 24 adequate evidence demonstrating that consent defenses … will require individualized inquiries,” 25 which is “a clear bar to class certification in TCPA matters.” Id. at *7-8 (collecting cases). 26

27 3 McKesson also remanded with respect to class members who “check[ed] a box” and 1 In his Reply Memorandum, Plaintiff suggests for the first time that all of Defendant’s leads 2 may be fraudulent. Plaintiff’s counsel claims he “sampled Acquire Crowd database” and now 3 suspects a “web bot, employee, or contactors for the lead generator” copied customers’ contact 4 information into the bestamericansavings.com website. (Dkt. No. 81 at 10). The Court sustains 5 Defendant’s objections and STRIKES this argument and the supporting declaration of Bradley 6 McFarland because Plaintiff failed to make this argument in his Complaint, opening brief, or in 7 the prior briefing on class certification. (See generally Dkt. Nos. 23, 34, 61, 68.); Provenz v. 8 Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (parties may not “submit ‘new’ evidence in their reply 9 without affording [the opposing party] an opportunity to respond. Such a result would be unfair.”) 10 But even if considered, Plaintiff’s theory does not satisfy his burden of proving predominance of 11 common questions by a preponderance of the evidence. Far from offering a plan for resolving the 12 issue class-wide, Plaintiff concedes his bot theory “is speculation.” (Dkt. No. 81 at 11.) 13 Accordingly, the Court finds the questions of law or fact common to class members do not 14 predominate over any questions affecting only individual members, Plaintiff’s claims and defenses 15 are not “typical” of those of the class, and Plaintiff cannot “fairly and adequately protect the 16 interests of the class.” Fed. R. Civ. P. 23(a)(3), (a)(4), (b)(3). Because these elements of Rule 23(a) 17 and Rule 23(b) are not met, the Court declines to address the parties’ arguments about numerosity 18 and commonality. 19 D. Leave to File a Further Class Certification Motion is Denied 20 The Court declines to grant leave to Plaintiff to file yet a third class certification motion. 21 His first class certification motion failed because he himself proposed a fail-safe class which 22 expressly involved a lack of consent, but then failed to address how consent could be decided on a 23 class-wide basis. And before the Court granted Plaintiff leave to file a second class action motion, 24 the Court specifically cautioned Plaintiff that certification would be challenging given that 25 Plaintiff insists he did not visit the website which provided the lead information to Defendant. 26 Yet, Plaintiff’s subsequent motion for class certification did not grapple with that fact and how it 27 affects his typicality and adequacy. Then in his Reply he improperly raised an entirely new 1 from its tardiness, Plaintiff’s suggestion is pure speculation unencumbered by evidence. So, the 2 Court declines to give Plaintiff a third bite at the apple. Plaintiff may prosecute his own claim, but 3 the Court in its discretion declines to appoint him to bring claims on behalf of others. 4 CONCLUSION 5 For the reasons set forth above, the Court DENIES Plaintiff’s motion for class 6 certification. The Court sets a further case management conference for December 3, 2025 at 2:00 7 p.m. via Zoom video. An updated joint case management conference statement is due one week in 8 advance. 9 IT IS SO ORDERED. 10 Dated: October 21, 2025 11 JACQUELINE SCOTT CORLEY 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27