Vandervort v. Balboa Capital Corp.

287 F.R.D. 554, 83 Fed. R. Serv. 3d 1520, 2012 WL 5248420, 2012 U.S. Dist. LEXIS 153096
CourtDistrict Court, C.D. California
DecidedOctober 23, 2012
DocketNo. 8:11-cv-1578-JST (JPRx)
StatusPublished
Cited by6 cases

This text of 287 F.R.D. 554 (Vandervort v. Balboa Capital Corp.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vandervort v. Balboa Capital Corp., 287 F.R.D. 554, 83 Fed. R. Serv. 3d 1520, 2012 WL 5248420, 2012 U.S. Dist. LEXIS 153096 (C.D. Cal. 2012).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (Docs. 40, 41, 42)

JOSEPHINE STATON TUCKER, District Judge.

Plaintiffs Michael A. Vandervort and U.S. Sample Services, Inc., (collectively, “Plaintiffs”) filed their First Amended Complaint on November 23, 2011, asserting claims for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, and California Business & Professions Code Section 17538.43. (First Am. Compl., Doc. 18.) On September 8, 2012, Plaintiffs filed a Motion for Class Certification. (Mot., Doc. 42.) Defendant Balboa Capital Corporation filed its Opposition on September 19, 2012. (Opp’n, Doc. 45.) Plaintiffs filed a Reply in support of the Motion for Class Certification on September 26, 2012. (Reply, Doc. 47.)

Having read the papers, reviewed the admissible evidence, and considered the arguments of Counsel at the hearing held on October 5, 2012, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion for Class Certification.1

I. BACKGROUND

Defendant Balboa Capital Corporation (“Defendant” or “Balboa”) provides equipment leasing and financing to its customers. (Mot. at 2.) Defendant employs a variety of marketing techniques, including — from 2008 through February 2011 — fax marketing. (Id.) It is undisputed that Defendant no longer uses fax marketing. (See id.; Opp’n at 3.)

Defendant tracks its marketing activities in a database called CRM. If a contact returned a postcard or requested more information, that prospect would be assigned to a sales representative who would then make direct contact. (Opp’n at 4.) Contacts who had expressed an interest in Defendant’s products or services through other means were also activated in CRM, as were customers who had previously engaged in transactions with Defendant. (Id.) Defendant also “cold called” contacts. (Id.) If one of those contacts expressed interest in learning more about Defendant’s services, that contact would be activated in CRM. (Id.) After a fax advertisement was prepared, one of Defendant’s employees — Jake Dacillo — prepared a list of activated contacts from CRM. (Mot. at 3-4.) This list comprised the recipient list for that new fax. (Id. at 4.) Defendant did not have a written policy requiring its account representatives to obtain explicit permission prior to sending faxes. (Opp’n at 6.)

While it engaged in fax marketing, Defendant employed ProFax, Inc. (“ProFax”), a fax-communication service in New York, to transmit the faxes and provide the opt-out language. (Id. at 4-5.) Aside from the opt-out language, Defendant prepared the content of the faxes. (Mot. at 2.) On or about May 21, 2010, Defendant sent Plaintiffs a [557]*557single, unsolicited fax. (Id. at 5; Opp’n at 5.) Defendant had an existing business relationship with Plaintiffs prior to sending the fax. (Opp’n at 5.) After receiving the fax, Plaintiffs opted out of receiving any future faxes from Defendant by acting on the opt-out mechanism included in the fax. (Id. at 5-6.)

Plaintiffs allege that the opt-out notice contained in the fax they received did not satisfy the statutory and regulatory requirements by, inter alia, (1) failing to specify a fax number for faxing of opt-out requests, (2) lacking a provision stating that persons who previously consented to receiving faxes may in the future opt-out of such requests, and (3) lacking a provision informing recipients that they must include their own fax numbers in any opt-out request.2 (Reply at 7-8.)

On the basis of the single 2010 fax, Plaintiffs seek certification of the following two classes for a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227:

Class A
All persons in the United States from October 12, 2007 through November 23, 2011 to whom Defendant sent or caused to be sent an unsolicited facsimile advertisement that advertised the commercial availability or quality of any property, goods, or services, and contained an opt-out notice identical or substantially similar to that contained on the facsimile advertisement attached as Exhibit 1 to the First Amended Complaint.
Class B
All persons in the United States from October 12, 2007 through November 23, 2011 to whom Defendant sent or caused to be sent a solicited or unsolicited facsimile advertisement that advertised the commercial availability or quality of any property, goods, or services, and contained an opt-out notice identical or substantially similar to that contained on the facsimile advertisement attached as Exhibit 1 to the First Amended Complaint.

(Mot. at 6.)

Plaintiffs seek certification of the following class for a violation of California Business & Professions Code Section 17538.43:

Class C
All persons in the United States from October 12, 2008 through November 23, 2011 whom Defendant, from California, sent or caused to be sent an unsolicited facsimile advertisement, advertising the commercial availability or quality of any property, goods, or services, without obtaining the persons’ express invitation or permission.

(Id.)

II. ASCERTAINABILITY

A. Legal Standard

“Before a class may be certified, it is axiomatic that such a class must be ascertainable.” Peel v. BrooksAmerica Mortg. Corp., No. 8:11-cv-0079-JST (RNBx), 2012 WL 3808591, at *2 (C.D.Cal. Aug. 30, 2012). Hence, a class cannot be certified if a plaintiff has not “established] an objective way to determine” who is a class member. Williams v. Oberon Media, Inc., 468 Fed. Appx. 768, 770 (9th Cir.2012) (affirming denial of class certification for lack of ascertainability). “Class members need not be ascertained prior to certification, but must be ascertainable at some point in the case.” Espinoza v. 953 Assoc. LLC, 280 F.R.D. 113, 125 (S.D.N.Y.2011). A class must be ascertainable without inquiring into the merits of the case. Saf-T-Gard Int’l, Inc. v. Wagener Equities, Inc., 251 F.R.D. 312, 314 (N.D.Ill. 2008). Thus, some courts have held that a TCPA class is “indefinite and inappropriate because it requires the court to delve into issues of liability.” Id.

B. Discussion

1. Class B

We begin with Class B, as it includes recipients of both solicited and unsolicited faxes. First, because Class B includes all recipients of fax advertisements, there is no need to determine whether a fax was solicited or unsolicited to determine membership in the class. Rather, classwide proof that each fax contained the same opt-out notice is sufficient for aseertainability. Second, the [558]*558CRM system contains the entire universe of persons to whom a fax could have been sent. (See Barnes Decl. Ex. 4 (Daeillo Dep.) at 50:6-12, Doc. 46-4.) This case is therefore unlike other eases where no such universe existed. Cf.

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287 F.R.D. 554, 83 Fed. R. Serv. 3d 1520, 2012 WL 5248420, 2012 U.S. Dist. LEXIS 153096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandervort-v-balboa-capital-corp-cacd-2012.