Thrower v. Citizens Disability, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 20-10285-GAO

GENE THROWER and ABANTE ROOTER AND PLUMBING, INC.,

individually and on behalf of all others similarly situated,

Plaintiffs,

v.

CITIZENS DISABILITY, LLC,

Defendant.

OPINION AND ORDER

August 30, 2022

O’TOOLE, D.J.

The plaintiffs Gene Thrower and Abante Rooter and Plumbing, Inc. have brought this

putative class action alleging that the defendant Citizens Disability, LLC (“Citizens”) employed

marketing practices targeted at them that violate the Telephone Consumer Protection Act

(“TCPA”), 47 U.S.C. § 227 et seq. In brief, the plaintiffs claim that the defendant unlawfully placed

calls and sent text messages to their cell phones without having received express consent to do so.

The plaintiffs have moved to certify their proposed class under Federal Rule of Civil Procedure

23. For the reasons detailed below, and after a hearing on the merits, the motion is granted.

I. Background

Citizens assists disabled persons with applying for Social Security Disability Insurance

(“SSDI”) benefits in exchange for a percentage of the benefits they are ultimately awarded.

Citizens markets itself to potential customers directly by contacting them via telephone, text

message, or email. To identify potential customers, Citizens works with marketing partners—

referred to as “lead generators”—that operate websites frequented by individuals who may qualify

for SSDI benefits. These websites often promise access to online shopping discounts or other

benefits to induce potential SSDI applicants to fill out consent forms. After an individual fills out

a form on a lead generator website, the lead generator sells the individual’s contact information to

Citizens. Citizens then uses that information to contact the individual to sell its services. The

identities of potential customers and their contact information are referred to as “leads.”

The TCPA prohibits companies from placing “any call (other than a call made for

emergency purposes or made with the prior express consent of the called party) using any

automatic telephone dialing system [(“ATDS”)] or an artificial or prerecorded voice . . . to any

telephone number assigned to a . . . cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).

The plaintiffs commenced this action under the TCPA, alleging that Citizens sent text messages

and placed calls to them and others on their cell phones using an ATDS without first obtaining

express consent. Citizens denies those allegations and argues that all individuals who received

marketing calls had expressly consented to receive such calls by filling out consent forms on lead

generator websites. Citizens also denies using an ATDS. The plaintiffs moved to certify the

following class:

All persons in the United States who (1) received a text message call or telephone call by

or on behalf of Defendant, (2) on his, her, or its cellular telephone, (3) from the last four

years through the date notice is sent to the Class, (4) for the same purpose as Defendant (or

its agent) placed the text message or telephone call to Plaintiffs, (5) using the same

equipment that was used to call or text the Plaintiffs, and (6) for who Defendant claims it

obtained express consent to place the text message or telephone call in the same manner

that Defendant contends it obtained express consent to call or text Plaintiffs.

(Pls.’ Mot. for Class Certification at 3 (dkt. no. 29).)

II. Legal Standard

In seeking class certification, a plaintiff must demonstrate that: 1) there are so many

putative class members that joinder of all members is impracticable; 2) common questions of law

or fact exist within the class; 3) the named plaintiff’s claims or defenses are typical of those of the

class; and 4) the named plaintiff will fairly and adequately represent the interests of the class. Fed.

R. Civ. P. 23(a). A putative class action plaintiff must also satisfy at least one of three sub-parts of

Rule 23(b). Id. 23(b). Rule 23(b)(3)—which is relied upon here—authorizes certification if “the

court finds that the questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Id. 23(b)(3). A court applying

Rule 23(b)(3) must consider individual class members’ possible interests in separate actions, the

effect of any pre-existing litigation, the suitability of the forum, and any expected difficulties in

managing the class action. Id. A putative class action plaintiff “must affirmatively demonstrate his

compliance” with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

III. Discussion

The plaintiffs must demonstrate that the proposed class is ascertainable and that it satisfies

both Rules 23(a) and 23(b)(3). They have done so.

A. Ascertainability

Rule 23 implicitly requires that a proposed class be “ascertainable,” and that identifying

members be “administratively feasible.” Shanley v. Cadle, 277 F.R.D. 63, 67–68 (D. Mass. 2011).

A class is ascertainable if members can be identified through “stable and objective factors” without

individualized litigation as to each member. Id. at 67; Donovan v. Philip Morris USA, Inc., 268

F.R.D. 1, 9 (D. Mass. 2010) (finding a class ascertainable where members were smokers who were

not being treated for lung cancer); see also Hilao v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir.

1996) (finding a class ascertainable where members were citizens of the Philippines who were

tortured by paramilitary groups between 1972 and 1986). A class is unascertainable if membership

hinges on “a legal determination requiring detailed inquiry into the particulars of each potential

claimant’s circumstance” rather than “an objective fact[.]” Shanley, 277 F.R.D. at 68 (finding a

class unascertainable where membership hinged on whether the defendant attempted to collect a

debt from an individual at a time when the defendant lacked a license to collect the type of debt

owed) (citation omitted).

The proposed class here is said to consist of persons who: 1) received marketing calls or

messages from the defendant within the last four years; 2) were called using the same

communications equipment that the defendant used to call the named plaintiffs; and 3) were

contacted based on leads from the same lead generators that produced leads for the named

plaintiffs. Citizens argues that the class is unascertainable as to the third criterion, claiming that

its own records regarding lead acquisition are too sparse to identify the specific lead generator that

generated a lead for a given customer. This argument must fail on its face; a TCPA defendant’s

failure to maintain adequate records is not a legitimate basis for denying certification. Birchmeier

v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 250 (N.D. Ill. 2014) (declining to deny certification

based on insufficiency of defendants’ records because “defendants are essentially arguing that the

contours of the class should be defined by defendants’ own recordkeeping”). Indeed, “declining to

certify a class altogether, as defendants propose . . . would create an incentive for a person to

violate the TCPA on a mass scale and keep no records of its activity, knowing that it could avoid

legal responsibility for the full scope of its illegal conduct.” Id.

In any event, the record before this Court at this stage indicates that Citizens’ records are

sufficiently detailed to identify class members. Each customer listed in those records is assigned a

“vendor lead code”—a unique identifier that corresponds to the lead generator responsible for that

lead. Those codes, Citizens admits, can be used to determine whether the lead for a given customer

came from the same lead generators as the leads related to Thrower and Abante. The proposed

class is ascertainable.

B. Rule 23(a) Certification Requirements

Next, the proposed class must satisfy the four requirements imposed by Rule 23(a). It

clearly does so. “The plaintiff need not pinpoint the exact number of class members [to

demonstrate numerosity], so long as she can demonstrate the impracticality of joinder.” Donovan,

268 F.R.D. at 10. The numerosity inquiry should be guided by “common sense,” particularly when

concrete evidence is lacking. See id. (“[C]ommon sense suggests that the number of smokers age

fifty and above who are not under care for lung cancer would be in the thousands. . . . Joinder is

clearly impractical.”). Here, given the nature of the nationwide marketing strategy alleged,

common sense suggests that there may be thousands of class members.

The commonality requirement is also satisfied. Commonality hinges not on “the raising of

common 'questions’” but on “the capacity of a class-wide proceeding to generate common answers

apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (emphasis in original)

(quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.

Rev. 97, 132 (2009)). That said, “[c]ommonality is a low hurdle”— “[a] single factual issue can

suffice.” Donovan, 268 F.R.D. at 10 (citation omitted). The plaintiffs’ allegations raise multiple

common issues, including whether the forms filled out by customers on lead generator websites

conveyed consent to be contacted, and whether Citizens called customers using an ATDS.

The existence of those same common issues also helps establish typicality. Indeed,

typicality and commonality “tend to merge” because they both focus on whether the plaintiffs’

claims are sufficiently “interrelated” with those of the class. Gen. Tel. Co. of Sw. v. Falcon, 457

U.S. 147, 157 n.13 (1982). The plaintiffs have met their burden as to both commonality and

typicality by alleging that they received the same types of calls as other class members, and that

they were unlawfully harmed in the same way. See In re Bos. Sci. Corp. Sec. Litig., 604 F. Supp.

2d 275, 282 (D. Mass. 2009) (“The plaintiff can [establish typicality] by showing that its injuries

arise from the same events or course of conduct as do the injuries of the class, and that its claims

are based on the same legal theory as those of the class.”).

To demonstrate adequate representation, a plaintiff must show that “the interests of the

representative party will not conflict with the interests of any of the class members” and that

plaintiff’s counsel is “qualified, experienced and able to vigorously conduct the proposed

litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985). Here, the named

plaintiffs’ interest in avoiding unlawful marketing appears directly aligned with similar interests

of members of the proposed class. There is also no suggestion that the named plaintiffs’ attorney

is incapable of effectively representing the class in this litigation.

C. Rule 23(b)(3) Certification Requirements

With ascertainability established and Rule 23(a) satisfied, the certification inquiry turns to

Rule 23(b)(3). Certification is appropriate under this rule if the plaintiff demonstrates the

predominance of common issues over individual issues and the superiority of a class action as a

method for fairly and efficiently adjudicating this controversy. Fed. R. Civ. P. 23(b)(3). Thrower

and Abante have cleared both of those hurdles.

i. Predominance

To establish predominance, a putative class action plaintiff must show that the proposed

class is “sufficiently cohesive to warrant adjudication by representation,” Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 623 (1997), and that a “sufficient constellation of common issues binds

class members together . . . .” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st

Cir. 2000); see also Donovan, 268 F.R.D. at 28 (“The heart of the predominance inquiry is whether

the ‘uncommon questions’ outweigh the commonalities.” (citation omitted)). While the

predominance requirement is “far more demanding” than Rule 23(a)’s commonality requirement,

it does not require that zero individual issues exist. Amchem, 521 U.S. at 624. Instead, the aim of

the inquiry is to “test whether any dissimilarity among the claims of class members can be dealt

with in a manner that is not ‘inefficient or unfair.’” In re Asacol Antitrust Litig., 907 F.3d 42, 51

(1st Cir. 2018) (quoting Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013)).

Inefficiency stems from the administrative burdens associated with deciding complex questions

on a plaintiff-by-plaintiff basis, such as conducting individualized evidentiary hearings. In re

Asacol, 907 F.3d at 51–52. Unfairness relates to the defendant’s right to effectively contest the

eligibility of potential class members. Id. Thus, “[i]n assessing efficiency and fairness . . . a class

may be certified notwithstanding the need to adjudicate individual issues so long as the proposed

adjudication will be both ‘administratively feasible’ and ‘protective of the defendants’ Seventh

Amendment and due process rights.’” Id. at 52 (quoting In re Nexium Antitrust Litig., 777 F.3d 9,

19 (1st Cir. 2015)).

Here, liability as to each putative class member will hinge on: 1) whether the individual

was called by Citizens within the statutory period; 2) whether the call was placed via the same

system used to call the plaintiffs; 3) whether Citizens willfully placed the call; 4) whether Citizens

placed the call to market its services; and 5) whether the individual had previously consented to

receiving the call by filling out a form on a lead generator website. Common issues predominate

because each of those five questions can be addressed either on a class-wide basis, or in an

individualized manner that is neither inefficient nor unfair.

The first question—whether an individual was called by Citizens—can easily be answered

using Citizens’ internal data. Individualized factual determinations do not create inefficiency or

unfairness if they can be made pursuant to rote, mechanical processes. Smilow v. Sw. Bell Mobile

Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003) (“Common issues predominate where individual factual

determinations can be accomplished using computer records, clerical assistance, and objective

criteria—thus rendering unnecessary an evidentiary hearing on each claim.”).

The second, third, and fourth questions—whether a given call was placed using an ATDS,

whether Citizens willfully placed that call, and whether that call was intended to market Citizens’

services—are all capable of class-wide adjudication. Citizens has repeatedly stated that all calls

were made through the same automated system (which it claims was not an ATDS), pursuant to

the same processes, and for the same commercial reasons.

The final question—whether an individual gave express consent to be contacted by

Citizens—has two aspects. First, there is a threshold factual issue: whether the individual filled

out a form on a lead generator website. This step requires individualized factual determinations,

but Citizens admits that those determinations can be made through a simple analysis of its own

internal data. Individualized customer-by-customer evidentiary hearings will not be necessary. As

a result, those individualized inquiries do not create inefficiency or unfairness, and they do not

preclude certification. See Smilow, 323 F.3d at 40.

The second step of the consent inquiry, necessary only as to individuals who filled out

forms on lead generator websites, presents a legal issue: whether the forms themselves conveyed

consent to be contacted for the purposes of the TCPA. This issue can be adjudicated on a class-

wide basis. Citizens does not claim that the wording of these forms varies between lead generator

websites or between users of the same website. Indeed, given that lead generators each operate

multiple websites, the number of unique forms requiring analysis will likely mirror the number of

lead generators.1 A few determinations of whether the wording of a given form conveyed express

consent to be contacted will likely suffice to cover the proposed class.

Citizens argues that the denial of certification in Bais Yaakov of Spring Valley v. ACT,

Inc., 12 F.4th 81 (1st Cir. 2021) compels denial here. Bais Yaakov concerned unwanted marketing

faxes sent by a standardized testing company to various schools. 12 F.4th at 83–84. Liability under

the TCPA turned on whether the plaintiff schools had given the testing company “express

permission” to send the faxes by previously requesting other materials. Id. at 88–89. As here, the

consent inquiry for class membership had a factual aspect (whether a school requested materials

from the company) and a legal aspect (whether the request gave express permission to send the

faxes complained of). The court denied certification because both issues required individualized

determinations. Id. at 89. Because each school wrote its own request for materials, the legal issue

could not be dealt with on a class-wide basis; the court would have had to inquire separately into

each school’s communications with the testing company to determine whether they had consented

to the faxes. Id. (noting that “to identify [consenting] members the court would have to ‘parse

through each unique relationship’ between every class member and ACT”).

Here, the story is different. The wording of requests for materials in Bais Yaakov varied

from school to school, whereas all signs here point to general uniformity among consent forms on

lead generator websites. The plaintiffs here did not produce the language that was later interpreted

by the defendant as conveying consent to be contacted. They checked boxes to fill out pre-

1 The parties agree that leads for Thrower and Abante were generated by two lead generators: DMS

and Fluent. At this stage, then, it appears that the class will only include individuals contacted

pursuant to leads from DMS and Fluent, and that the legal inquiry as to consent will only address

the online forms found on websites operated by DMS and Fluent.

packaged forms that were provided to them on the websites they visited, which were presumably

identical to the forms provided to all other users of those same websites. The legal aspect of the

consent inquiry can be dealt with on a class-wide basis. The plaintiffs have demonstrated that

common issues predominate.

ii. Superiority

The superiority (or inferiority) of a class action as a method for adjudicating a dispute

hinges on individual class members’ interests in separate actions, the effect of pre-existing

litigation, the suitability of the forum, and any expected difficulties in case management. Fed. R.

Civ. P. 23(b)(3). Generally, “[s]uperiority exists where ‘there is a real question whether the

putative class members could sensibly litigate on their own for these amounts of damages,

especially with the prospect of expert testimony required.’” Donovan, 268 F.R.D. at 29 (quoting

Gintis v. Bouchard Transp. Co., Inc., 596 F.3d 64, 68 (1st Cir. 2010)). Courts evaluating

superiority must remain cognizant that “[t]he core purpose of Rule 23(b)(3) is to vindicate the

claims of consumers and other groups of people whose individual claims would be too small to

warrant litigation.” Smilow, 323 F.3d at 41 (citing Amchem, 521 U.S. at 617).

Here, the superiority factors militate in favor of class certification. As is often the case in

TCPA cases, class members will have little incentive to litigate their claims individually. Although

their claims would depend on similar factual and legal issues, each claim would have limited

monetary value, making the prospect of individual suits unlikely. See Donovan, 268 F.R.D. at 29.

Indeed, the putative class members’ interest in class certification is particularly strong because

there is a “considerable disparity in resources” between them and the corporate defendant, and

because they seek injunctive relief that “is not available for a simple sum of money.” See id.

Injunctive relief as to one plaintiff among thousands has little impact. Finally, and as discussed

above, the need to adjudicate individualized issues separately will be limited, and any

individualized adjudications that become necessary will have minimal impact on efficiency and

fairness. The plaintiffs have demonstrated superiority and carried their burden of compliance with

Rule 23(b)(3). The merits of their claims shall be decided on a class-wide basis.

IV. Conclusion

For the foregoing reasons, Plaintiffs’ Motion for Class Certification (dkt. no. 29) is

GRANTED. The following class is hereby certified, subject to amendment:

All persons or entities in the United States who: 1) received a text message or telephone

call from or on behalf of the defendant Citizens Disability, LLC; 2) on their cellular

telephone; 3) no earlier than February 12, 2016, and no later than the date notice is sent to

the class; 4) for the same purpose for which the defendant (or its agent) contacted the named

plaintiffs; 5) using the same equipment or automated system that was used to contact the

named plaintiffs; and 6) pursuant to leads generated by the same marketing partners that

generated leads as to the named plaintiffs.

It is SO ORDERED.

/s/ George A. O’Toole, Jr.

United States District Judge