Geier v. M-Qube Inc.

314 F.R.D. 692, 2016 U.S. Dist. LEXIS 100022, 2016 WL 2622054
CourtDistrict Court, W.D. Washington
DecidedJanuary 20, 2016
DocketC13-354 TSZ
StatusPublished

This text of 314 F.R.D. 692 (Geier v. M-Qube Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geier v. M-Qube Inc., 314 F.R.D. 692, 2016 U.S. Dist. LEXIS 100022, 2016 WL 2622054 (W.D. Wash. 2016).

Opinion

ORDER

Thomas S. Zilly, United States District Judge

THIS MATTER comes before the Court on plaintiffs motion for class certification, docket no. 82. Having reviewed all papers filed in support of, and in opposition to, plaintiffs motion, the Court enters the following order.

Background

This case concerns the practice of “mobile cramming,” which is the practice of “placing unauthorized, misleading, or deceptive charges on a consumer’s telephone bill.” Fed. Trade Comm’n v. Inc21.com Corp., 745 F.Supp.2d 975, 996 (N.D.Cal.2010). At a high level, the cramming industry included three different groups: content providers, who created products which were sold to consumers; cell carriers, such as AT&T and Verizon who would bill their customers for purchasing content providers’ products; and billing aggregators, which served as a link between the two. Though defendant Mobile Messenger1 was a billing aggregator, it also occupied a hybrid position in the market by virtue of its creation of “white-label PSMS” programs, which were products it created but offered to content providers to directly market to consumers. These PSMS programs provided services such as ringtones, trivia, games, etc. to cell phone subscribers through a four to six digit number known as a “short code.” Marshall Deck, docket no. 83-1, Ex. 4 (FTC Report on Mobile Cramming at 4). While much of the PSMS industry involved marketing such goods, it was (and still is) used for raising funds for charities and political campaigns. Id. at 2. One stated advantage of PSMS billing is that it allows businesses, charities, and political campaigns to bill customers or clients via their cell phone bill, rather than directly through a credit card. Id.

In the PSMS industry, aggregators like Mobile Messenger served as a link between [695]*695content creators and carriers. Aggregators would allow content providers to connect to the wireless carriers’ networks to send and receive text messages through short codes which were assigned by the carriers. Ma-chock Deel., docket no. 102, ¶ 5. In addition, these aggregators were able to instruct the carriers to place charges upon a customer’s cell phone bilk Marshall Deck, docket no. 83-1, Ex. 4 (FTC Report on Mobile Cramming at 5). Aggregators such as Mobile Messenger would receive a proportion of those bills, typically the smallest share. Ma-chock Deck, docket no. 102, ¶ 5.

A typical sequence of events leading to a charge on a customer’s cell bill begins with a customer viewing a website known as a “landing page.” The landing page would market some product or service, and instruct the user to input his or her cell phone number into the page. After doing so, a text message from a short code would be sent to the cell phone number and contain a PIN number. Bonato Deck, docket no. 108, ¶¶ 2-3. Only after the customer entered that PIN number into the landing page would charges be placed upon the customer’s cell phone bilk Id. These two steps were known as the “double opt-in process,” which was designed to ensure that the owner of a certain cell number was the individual enrolling for a program. For its white-label PSMS programs, Mobile Messenger provided sample landing pages and marketing materials to its partners, but had no direct control over what the ultimate landing pages looked like. Machock Deck, docket no. 102, ¶ 7.

The PSMS industry was ultimately revealed to be rife with abuse and fraud, leading government regulators to bring multiple enforcement actions that resulted in each major carrier agreeing to a cessation of the business and the creation of refund pools. Id. ¶ 15-16; Tewell Deck, docket no. 189, Ex. D (CFPB Settlement Agreement at 16). During the existence of the for-profit PSMS industry, carriers would routinely refund charges that customers disputed. When they did so, the carriers would deduct such funds from monies owed to whichever aggregator was responsible for billing the client. Machock Deck, docket no. 102, ¶ 16.

This suit arose after the named plaintiff, Richard Geier, learned that he had been billed2 by Pow! Mobile for one of Mobile Messenger’s white-label products. Cacciato Deck, docket no. 17, ¶ 10. A declaration from the CEO of Pow! Mobile details the process through which plaintiffs wife, Ms. Geier, subscribed to one of Mobile Messenger’s white-label products. Pow! Mobile’s records demonstrate that Ms. Geier signed up for the product by going through the standard authentication procedure. Id. ¶¶ 15-28.3 Ms. Geier has little to no memory of this process. Prince Deck, docket no. 117, Ex. 5 (M. Geier Tr. 31:11-22; 50:24-51:24). Although AT & T provided plaintiff with refund credit in excess of the unwanted PSMS charges, Prince Deck, docket no. 117, Ex. 1 (Geier Tr. 47:24-48:4), he ultimately brought suit against defendants.

Plaintiff disputes that his wife ever signed up for a PSMS product from defendants. At her deposition, Ms. Geier testified that she never entered a PIN number on a webpage that she received on her phone, and if she had entered a phone number into a landing page, it would have been her home line. Prince Deck, docket no. 117, Ex. 5 (M. Geier Tr. 31:11-22). In briefing, plaintiff speculates, without support, that they were enrolled through “stacked marketing,” but admit that they “have no understanding as to how they were enrolled.” Pl.’s Mot., docket no. 81, at 31.

Plaintiff now moves, pursuant to Rule 23(b)(2) and Rule 23(b)(3) to certify the following class: “All residents of Washington who, at any time from October 17, 2008 to the present, were enrolled through a website for one of Mobile Messenger’s white-label PSMS programs.” Pb’s Mot., docket no. 81, at 1.

[696]*696 Discussion

A. Standard for Class Certification

Class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Certification of a class is within the discretion of the Court, guided by Rule 23. That rule “does not set forth a mere pleading standard,” but instead embodies evidentiary thresholds that plaintiff must satisfy. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Rule 23(a) requires a plaintiff to affirmatively demonstrate that the proposed class is sufficiently numerous, that it presents commons questions of law or fact, that the class representatives bring claims typical of the class, and that the class representatives will adequately represent the class. If a plaintiff establishes each element of Rule 23(a), he or she must also satisfy one subsection of Rule 23(b). This analysis is “rigorous” and may “entail some overlap with the merits of the plaintiffs underlying claim.” Wal-Mart Stores, 131 S.Ct. at 2552 n. 6.

Defendants challenge almost every element of the Rule 23 inquiry, ceding only numerosity.

B. Rule 23(a)

1. Commonality

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Bluebook (online)
314 F.R.D. 692, 2016 U.S. Dist. LEXIS 100022, 2016 WL 2622054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geier-v-m-qube-inc-wawd-2016.