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Zeidel v. A&M 2015 LLC

United States District Court, N.D. Illinois, Eastern Division

March 30, 2017

FRIEDA ZEIDEL and CARLA SERRANO, individually and on behalf of a class of similarly situated individuals Plaintiffs,
v.
A&M 2015 LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff Carla Serrano's motion for class certification [99], Defendant A&M (2015) LLC's second motion for summary judgment [93], Plaintiffs' motion to file a sur-reply in opposition to the motion for summary judgment [124], and Defendant's motion to file sur-sur-reply in further support of the motion for summary judgment [127]. For the reasons set forth below, Plaintiff's motion for class certification [99] is granted and Plaintiffs' motion to file a sur-reply [124] is granted. Defendant's motion to file a sur-sur-reply [127] is granted and the motion for summary judgment [93] is denied. This case is set for further status on April 19, 2017, at 9:30 a.m. to discuss pre-trial scheduling and the possibility of settlement.

         I. Background

         Defendant A&M (2015) LLC (formally known as YM LLC USA) operates the retail clothing store, MANDEE.[1] MANDEE stores are located predominately on the East Coast, but one store is located in Norridge, Illinois. In May 2013, Plaintiff Frieda Zeidel was shopping at the Norridge MANDEE store when she provided a sales associate with her cell phone number.On June 5, 2013, Plaintiff Zeidel received the following text message on her phone:

Welcome to VIP status! Yo1ur gift: 20% OFF ur purch. Exclusive offers 2 come. Cannot combine RC 427 Expires in 30 days. www.Mandee.com Rply STOP to stop.

         Plaintiff Carla Serrano also visited the same MANDEE store, gave her cell phone number to an in-store sales associate, and received this same text message on December 31, 2013. Both Plaintiffs contend that they did not consent to receive this text message.

         Between May 2013 and March 2014, Defendant contracted with Mozeo, LLC to send marketing text messages to MANDEE customers. Mozeo operates an Internet accessible platform that enables users, like Defendant, to create and send emails or text messages to their customers. The only people who received text messages from Defendant through Mozeo were those whose information was stored in Defendant's Customer Maintenance database. The information in the database is voluntarily collected from consumers, who can input their contact information on the MANDEE website or provide this information to sales associates when shopping at a MANDEE store. Customers can also send a text message to Mozeo with the name “MANDEE” or “A&M” to be added to this database. No phone numbers in Defendant's database were “provided, generated, or created by Mozeo in any fashion.” [111, ¶ 15.]

         The Mozeo platform allows users to create and update a contacts list, which can be input manually or imported from a data file like a spreadsheet. Messages are sent through a shared SMS shortcode, which is a code used by text-message aggregators to send or receive messages. Some messages sent through Mozeo require a multi-step process. The user must select the recipients of the message, input the message content, determine when the message should be sent, and finalize it before Mozeo (or its text message aggregator) interacts with the wireless carrier and sends the message to the customer's phone numbers using the SMS shortcode.

         Other messages can be sent to customers “automatically.” [120, ¶ 4.] The “welcome” text messages that Plaintiffs received fall into this category, and were “automatically sent * * * as a result of the customer providing their cellular telephone number to a Mandee's sale associate in-store at the point of sale.” Id. Specifically, a phone number is entered into Defendant's electronic cash register with a “Mobile Opt-In” data entry field. Id. ¶ 8 The parties dispute whether this field defaults to “yes” or “unknown, ” the latter of which would require the sales associate to select “yes” or “no” from a drop-down menu. Once the contact information is entered into the register, it is “automatically uploaded into Defendant's Customer Maintenance database” and then “automatically uploaded into Mozeo's database.” Id. ¶¶ 9, 10. “Mozeo immediately thereafter automatically sen[ds] a ‘welcome' message to the telephone number.” Id. ¶ 10. These messages were sent by the Mozeo platform every day from June 1, 2013 through February 28, 2014. Id. Between October 17, 2013 and February 28, 2014, at least 79, 404 unique phone numbers were sent Defendant's “welcome” messages using shortcode 24587. [99, at 15.]

         One more aspect of the Mozeo platform requires description. The platform has a “Text-to-Win” feature that “randomly chooses a telephone number from a list of numbers and immediately sends a text message notification to the randomly chosen number.” [120, ¶ 16 (punctuation altered).] According to Plaintiffs, this feature operates by determining the total number of phone numbers in a stored list, runs a program that generates a random number between 1 and total number of stored phone numbers, and then dials the phone number corresponding to the randomly generated number.[2]

         Plaintiffs contend that Defendant's conduct violates the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”). They argue that Defendant maintained a “policy and practice of gathering telephone numbers, obtaining oral consent to send text messages, and actually sending the text messages” through the Mozeo platform. [99, at 12.] Plaintiff Serrano moves to certify a class action involving certain recipients of Defendant's text messages for alleged TCPA violations [99]. Defendant moves for summary judgment [93].

         II. Legal Standard

         A. Federal Rule of Civil Procedure 23

          To be certified as a class action, a proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and one of the three alternative requirements in Rule 23(b). Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Rule 23(a) provides that a named party may sue on behalf of individuals who are similarly situated if: (1) the class is so numerous that joinder of all putative class members is impracticable (“numerosity”); (2) there are questions of law or fact common to the putative class (“commonality”); (3) the claims or defenses of the named party are typical of the claims or defenses of the putative class members (“typicality”); and (4) the named party will fairly and adequately protect the interests of the class (“adequacy”). Fed.R.Civ.P. 23(a). “[A] proposed class must always meet the Rule 23(a) requirements.” Messner, 669 F.3d at 811. “Because Rule 23(a) provides a gate-keeping function for all class actions, ordinarily we would begin there and only turn our attention to Rule 23(b) after we were certain that all of Rule 23(a)'s requirements had been met.” Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 374 (7th Cir. 2015).

         When certification is sought under Rule 23(b)(3), as it is here, the proponent of the class must also show that: (1) questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members (“predominance”); and (2) a class action is superior to other available methods of resolving the controversy (“superiority”). Messner, 669 F.3d at 811. Moreover, the class must also meet Rule 23's “implicit requirement of ‘ascertainability, '” meaning that the class is “defined clearly and based on objective criteria.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).

         Plaintiff bears the burden of proving that she is entitled to class certification. Messner, 669 F.3d at 811. Although class certification proceedings are not “a dress rehearsal for the trial on the merits, ” id., the Court does not presume that all well-pleaded allegations are true for purposes of deciding the certification question. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir. 2001). Rather, before the Court allows a case to proceed as a class action, it “should make whatever factual and legal inquiries are necessary under Rule 23.” Id. at 676. “A party seeking class certification must affirmatively demonstrate [her] compliance with the Rule-that is, [s]he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores v. Dukes, 564 U.S. 338, 350 (2011) (emphasis in original). But the showing need not be “to a degree of absolute certainty. It is sufficient if each disputed requirement has been proven by a preponderance of evidence.” Messner, 669 F.3d at 811. The Court exercises broad discretion in determining whether class certification is appropriate given the particular facts of the case. See Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998).

         B. Federal Rule of Civil Procedure 56

          Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To establish that a material fact is undisputed, the movant “must support the assertion by * * * citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations * * *, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). In determining whether summary judgment is appropriate, the Court should construe all facts and reasonable inferences in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Put another way, the moving party may meet its burden by pointing out to the court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         To avoid summary judgment, the opposing party then must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). For this reason, the Seventh Circuit has called summary judgment the “put up or shut up” moment in a lawsuit-“when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (citation omitted). The “mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

         III. Analysis

         The TCPA prohibits the making of “any call (other than a call * * * made with the prior express consent of the called party) using any automatic telephone dialing system * * * to any * * * cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA applies equally to text messages. See Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667 (2016). The statute defines an “automatic telephone dialing system” or ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Id. § 227(a)(1). While use of an ATDS is an element of a plaintiff's prima facie case, consent is an affirmative defense for which a defendant bears the burden of proof. Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905 (N.D. Ill. 2012) (collecting cases). Both concepts play some role in Plaintiff Serrano's motion for class certification-the issue to which the Court turns first.

         A. Class Certification

         Plaintiff Serrano, but not Plaintiff Zeidel, seeks to certify a Rule 23(b)(3) class with the following definition:

         All persons in the United States and its Territories who were sent the text message:

Welcome to VIP status! Your gift: 20% OFF ur purch. Exclusive offers 2 come. Cannot combine RC 427 Expires in 30 days. ww ...

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