Sullivan v. All Web Leads, Inc., No. 1:2017cv01307 - Document 103 (N.D. Ill. 2018)

Court Description: MEMORANDUM Opinion and Order: For the reasons stated herein, AWLs Daubert Motion (Dkt. 70) is denied. Plaintiffs Motion to Certify Class (Dkt. 75) is granted. Signed by the Honorable Harry D. Leinenweber on 6/25/2018:Mailed notice(clw, )
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Sullivan v. All Web Leads, Inc. Doc. 103 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOHN KARPILOVSKY and JIMMIE CRIOLLO, JR., Individually and on Behalf of Others Similarly Situated, Case No. 17 C 1307 Plaintiffs, Judge Harry D. Leinenweber v. ALL WEB LEADS, INC., a Delaware Corporation, Defendant. MEMORANDUM OPINION AND ORDER Plaintiff William Sullivan originally brought this lawsuit under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et practices seq. by (the “TCPA”), Defendant All alleging Web deceptive Leads, marketing Inc. (“AWL”). Plaintiffs John Karpilovsky and Jimmie Criollo, Jr. have since stepped into Sullivan’s shoes (see, Am. Compl., Dkt. 44), and they now move for certification of the proposed class. 75.) AWL contemporaneously expert report and testimony. moves to exclude (Dkt. 70.) (Dkt. Plaintiffs’ For the reasons stated herein, the Court grants the Plaintiffs’ Motion for Class Certification and denies AWL’s motion to exclude. Dockets.Justia.com I. As recited in this BACKGROUND Court’s denial of AWL’s Motion to Dismiss, AWL offers services to insurance industry customers, typically Sullivan insurance v. All agents, Web Leads, by generating Inc., No. 17 2378079, at *1 (N.D. Ill. June 1, 2017). “leads.” C 1307, See, 2017 WL Specifically, All Web places calls to potential purchasers of insurance coverage and then transfers those calls to its customers. (Am. Compl. ¶ 17, Dkt. 44.) To identify “leads,” All Web owns and operates various websites claiming to offer insurance quotes. (Id. ¶ 19.) Upon visiting one of these websites, a consumer is directed to fill out a quote request form specific to the type of insurance of interest. (Id.) The Plaintiffs maintain that they visited AWL’s site and encountered the webpage now at center stage in this lawsuit. (Id. ¶¶ 20, 33, 40, 48.) That webpage contained fields for the user to input personal information, including a cell phone number, and then presented a button at the bottom of the page that read “Submit.” (Id. ¶¶ 21, 34, 41, 48.) AWL’s TCPA- required disclosure appeared in fine print below that Submit button. (Id. ¶ 24.) After entering their information into these fields and clicking Submit, Karpilovksy, Criollo, and - 2 - the other would-be Plaintiffs they seek allegedly received phone calls from AWL. to represent all (Id. ¶¶ 35, 43, 48.) The Plaintiffs collectively assert that by clicking Submit, they did not consent to the AWL disclosure. (Id. ¶¶ 25-28, 38, 46, 48.) Two motions are now before the Court: first, a Daubert motion, in which Defendants seek to exclude the expert report of Alexander Young; and second, Plaintiffs’ Motion for Class Certification. II. A. DISCUSSION AWL’s Daubert Motion Plaintiffs have retained Alexander Young (“Young”), who provided an expert report and then deposition testimony on the subjects of web design and typical user behavior. his credentials: Strategist at Young ePageCity, is a which co-founder he and describes as These are the a Chief “market leading creative agency that has been engaged exclusively in website design services since 1999.” 87-1.) (Young Report at 3, Dkt. From that time to present, ePageCity purports to have launched over 1,000 websites and to have conducted, through an associated business, experience testing. digital (Id.) marketing Young - 3 - that also includes claims to userhave personally authored over 3,000 webpages, and he holds a Bachelor’s degree with a double major in Computer Science and Business Administration from the University of Stellenbosch in South Africa, as well as an unspecified equivalency from the same institution. His expert “unchanged report website provides opinion”; the and the “best practices opinion.” 1.) Although AWL moves to Master’s degree (Id. at 4.) three “same opinions: experience the opinion”; (Young Rpt. at 3, Dkt. 87- exclude Young’s report and testimony in full, AWL never challenges his unchanged website opinion, which essentially states that the AWL website did not materially change during the class period. Dep. Tr. agreeing 52:25-53:11, that 2013).) the Young’s Dkt. site two 76-2 has other not (AWL’s 30(b)(6) materially opinions (Accord Leirer are designee changed since presented and challenge, the considered in detail below. To lift Young’s report over AWL’s Plaintiffs must show that the testimony “is the product of reliable sufficient principles facts and and methods,” data,” and which that Young is “based “has on reliably applied the principles and methods to the facts of the case.” FED. R. EVID. 702(b)-(d). In determining whether Plaintiffs - 4 - have met this standard, the Court may consider such factors as: (1) whether the methods that Young employs can be (and have been) tested, (2) whether they have been subjected to peer review and publication, (3) whether the techniques command widespread acceptance within the relevant scientific community, (4) whether there are “standards controlling the technique’s operation,” and (5) the “known or potential rate of error” of the methods. See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993); cf. FED. R. EVID. 702, factors Advisory that Committee’s courts have found Notes (listing “relevant in additional determining whether expert testimony is sufficiently reliable”). However, as the Supreme Court has explained, “the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination,” and accordingly “Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts Carmichael, original). nonscientific 526 or in U.S. every 137, Further, experts “the is case.” Kumho 141-42 test (1999) for ‘flexible.’” - 5 - Tire Co. (emphasis reliability United States v. in for v. Romero, 189 F.3d 576, 584 (7th Cir. 1999) (quoting Kumho Tire, 526 U.S. at 150). 1. “Same Experience Opinion” In this opinion, Young recites that: For the entire Class Period, users of the Website had the same online experience, i.e. users who visited AWL’s Website would have experienced the same consent procedure in which the contested language was placed beneath the “Submit” button (without alerting the users that legal disclosures appeared below the “Submit” button) and was therefore not visible to the users unless they scrolled down to view it. (Young Rpt. at 3, Dkt. 87-1.) Defendants object to the reliability of this opinion, claiming that it is neither testable nor actually put to any testing here. But Young did conduct testing—albeit limited— before offering this correspondingly limited opinion. Young began by identifying the market shares of top-performing web browsers at the start and the end of the class period. at 6.) (Id. For each of those periods, Young reports accounting for the browsers used in 93-94% of all web visits (to any website). (Id.) Next, Young sought to verify the consistency of the user experience across these different browsers. so, Young describes used as an “an emulator industry called leading - 6 - Browserstack, tool for To do which emulating he how different Young browsers relates would that his render a webpage.” (Id. non-litigation-related at clients hired him to run emulations on this same program. 9.) have He further relates that companies such as Microsoft, Twitter, and AirBnB routinely use Browserstack to test the display webpages on different browsers and devices. to Young’s report, he used Browserstack (Id.) to of their According test the AWL webpage on each of the browsers he identified as in popular use during the relevant time periods. As the screenshots contained within Young’s report show, all of the results are substantially similar. Young’s (Id. at 10-15.) methodology suffices, under the liberal admissibility standard applied to expert testimony, to clear the hurdle for reliability. 897 F.2d 293, 298 (7th See, Krist v. Eli Lilly & Co., Cir. 1990) (“[T]he rule on expert testimony [is] notably liberal.”). Personal observation of the deemed kind Young made here is often reliable source of information. to be the most Loeffel Steel Prod., Inc. v. Delta Brands, Inc., 372 F. Supp. 2d 1104, 1116 (N.D. Ill. 2005) (citing Daubert, 509 U.S. at 590 n. 9). “Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called ‘general truths derived from . . . - 7 - specialized (citation experience.’” omitted). Kumho Such Tire, observations 526 U.S. are the at basis 148 of Young’s “same experience” opinion, and they could have been empirically validated or refuted by additional Defendants’ part if they thought it necessary. testing on See, Clark v. Takata, 192 F.3d 750, 758 (7th Cir. 1999) (opining that handson testing can be a reasonable methodology). AWL’s gripe that Young could not have tested “every possible combination” of browsers and devices goes to weight, not reliability, and does not agitate for striking Young’s report. (Daubert Reply at 4, Dkt. 95.) 2. “Best Practices Opinion” In this opinion, Young recites that: “The format for the Website did not comply with industry ‘best practices’ . . . [for] [e]nsuring that users have notice of the terms.” Rpt. at 3, 18, Dkt. 87-1.) “best practices” experience. are, (Young Young goes on to recite what these according to his knowledge and He represents, among other things, that consent language must be conspicuous, explicit, and clearly visible, which Young explains may be accomplished either by making the terms “visible ahead of the Submit button” or else by requiring users to click a box signifying their recognition - 8 - and acknowledgment of the terms prior to clicking Young’s opinion Submit. (Id. at 18.) Clearly, then, the basis of bolstered by empirically tested data. “is not unreliable simply because is not But expert testimony it is founded on [a witness’s] experience rather than on data; indeed, Rule 702 allows a witness to be ‘qualified as an expert by knowledge, skill, experience, training, or education.’” v. Emigrant Sav. Bank, 619 F.3d 748, 761 Metavante Corp. (7th Cir. (quoting FED. R. EVID. 702) (emphasis in original). raises other objections as well. Young’s opinion nowhere cites 2010) Yet AWL First, AWL complains that to the best practices presenting consent language in the TCPA context. for But Young does not profess to recite such specific practices; indeed, Young forthrightly admitted in his deposition that he is not aware of TCPA-specific consent standards. Tr. 235:24-236:21, Dkt. 70-2.) (See, Young Dep. If AWL believes that lack of specificity renders Young’s opinion less persuasive or less relevant, it may argue as much; but these contentions do no heavy lifting for AWL now, where the issue is the report’s reliability. Next, Defendants point out that when Young identifies two websites as support for his characterization of - 9 - “best practices,” Young fails to explain why those websites, particularly, are worthy of recognition or the practices they espouse meritorious. choosing these At his deposition, Young explained that sites over alternatives made because “[t]hey all have the same story.” no difference (Id. 242:17-243:2.) According to Young, then, these websites accord with what all others of their ilk will demonstrate: The best practices for ensuring a user is aware of a site’s terms comport with the practices recited in Young’s opinion. If AWL was incredulous, it could have produced its own, competing expert—which it did not—or it may weight the challenge finder of Young’s fact conclusions should afford and them. thus But the AWL’s objection to Young’s exemplars does not sufficiently undermine the reliability of his opinion, given the breadth of professional experience Young has in website design. One note further on Young’s opinions: Defendants also object, though not in so many words, to what the Court will refer to opinion as does Young’s not “typical appear as user a opinion.” discrete Though conclusion in this his report, Young testified at his deposition that a typical user of a generic website will “stop scrolling” once she sees the Submit button. (Id. 107:22-109:2.) - 10 - The reasonable implication of this testimony is that because AWL’s terms only appear below the Submit button, a typical AWL website user would stop scrolling down before reaching the AWL terms. with Young’s “best practices opinion” described above, As the basis for the “typical user opinion” is Young’s considerable experience in the website design industry. He admits he conducted no empirical testing of how typical users of AWL’s site actually behaved. opinions predicated design. See, But again, Young may present expert upon Metavante his years Corp., of 619 experience F.3d at 761. in web AWL’s objections to Young’s method once more go to weight and not admissibility. Cf. Fletcher v. Doig, 196 F. Supp. 3d 817, 824 (N.D. Ill. 2016). For these reasons, Defendants’ Motion to exclude Young’s expert report and testimony is denied. B. “To be Plaintiffs’ Motion for Class Certification certified, a proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a), as well as one of the three alternatives in Rule 23(b).” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citation omitted). prove numerosity, Rule 23(a) requires Plaintiffs to typicality, commonality, - 11 - and adequacy of representation. Id. Plaintiffs in this case seek certification under Rule 23(b)(3), which also requires them to prove that: (1) the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual members; and (2) a class action is superior to controversy. other Id. available In methods conducting the of resolving class the certification analysis, the Court need only consider the evidence submitted by the parties and determine whether Plaintiffs have proven each of Rule 23’s elements by a preponderance of the evidence. Kleen Prod. LLC v. Int’l Paper, 306 F.R.D. 585, 589 (N.D. Ill. 2015) (citing Messner, 669 F.3d at 811), aff’d sub nom., Kleen Prod. LLC v. Int’l Paper Co., 831 F.3d 919 (7th Cir. 2016). Finally, Plaintiffs must prove their proposed class is “ascertainable,” meaning the class is clearly defined and its parameters based on objective criteria. See, Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). Plaintiffs seek certification for the class of individuals defined as: All persons within the United States who filled out and submitted an insurance quote form on Defendant’s website www.affordable-health-insurance-plans.org and then received a non-emergency telephone call from All Web Leads, or any party acting on its behalf, to a cellular telephone through the use of - 12 - all an automated telephone dialing artificial or prerecorded voice. system or an (Am. Compl. ¶ 51, Dkt. 44.) 1. In its opposition Threshold Issues to class wields a single weapon: consent. certification, AWL mainly It contends again and again that because some or most of the proposed class might have consented to receive calls from AWL, AWL cannot be on the hook for many of the alleged TCPA violations, and the Court will have to muddle through a cumbersome and individualized inquiry to sort out which class members, if any, actually have a good claim. This is not AWL’s first go-round with this argument; it raised the same thing in its earlier Motion to Dismiss, arguing that the Court should strike the proposed class even then. The Court refused to do so at that early stage, and observed: [The proposed class comprises] individuals each of whom engaged in the same consent procedure . . . filling out the quote form, clicking “Submit,” and then receiving an autodialed cell phone call. Thus, absent some other interface with All Web, each putative class member gave the same consent; the ability of All Web to invoke consent as an affirmative defense to each class member is uniform; and determining the legal efficacy of this consent under the TCPA “will resolve an issue that is central to the validity of each one of the claims in one stroke.” - 13 - Sullivan, 2017 WL 2378079, at *9 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). AWL thus learned of the Court’s perspective on this question back in June 2017, and yet in the wake of that opinion, AWL took no steps to shore up its argument. expert, Young, materially who changed The Plaintiffs, however, retained an testified during that the the class AWL website period and, was for not that reason, all members of the proposed class experienced the same information-submission and click-through procedure when they used AWL’s website. (See, supra, at Parts II-A, II.A.1.) AWL did not retain a rebuttal expert nor in any other fashion produce evidence showing that any member of the class actually consented to the AWL terms. That shortcoming matters. Consider Rule 23(b)(3)’s predominance requirement: “While it is plaintiff’s burden to meet the predominance test,” opposition to predominance “based on theory, not evidence, is not a weighty objection.” Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2016 WL 25711, at *7 (N.D. Ill. Jan. 4, 2016). Thus, where the defendant’s objection to class certification fails to set forth specific evidence “and instead only makes vague assertions about consent,” individualized issues regarding consent will not predominate - 14 - over common questions of law or fact.” Toney v. Quality Res., Inc., 323 F.R.D. 567, 587 (N.D. Ill. 2018) (citation omitted). Rather than produce any specific evidence, AWL serves up a banquet of lawyerly free association: AWL asserts, without evidence, opinion—again, states that that Young’s typical typical users do user not scroll below which “Submit” buttons—does not much matter because some users might have used screens large enough to display the entire webpage, disclosure and all, without any need to scroll down. AWL also claims that contrary to Young’s opinion, “research concludes that consumers do, in fact, scroll.” (Cl. Cert. Resp. at 18, Dkt. 87.) AWL fortifies this opinion with two from-the-blue citations to online articles which purportedly suggest consumers “know to scroll to navigate a webpage’s content.” (Id. at 19.) There is more. AWL next claims that because 2.3 percent of the U.S. population is visually impaired, the class definition fails to account for a not-insignificant portion of the class that uses “screen readers,” which presumably read aloud the content on a webpage. (Id. at 20.) AWL does not bother to include within this purely legal conjecture what proportion of the visually-impaired population actually uses screen readers nor any explanation for how these readers work, - 15 - i.e., whether they automatically read the fine print on every web page, or not. As detailed further below, AWL swings its consent defense as a cudgel against nearly all of the Rule 23 requirements. But for this defense to have any traction at the class certification phase, the defendant asserting it must produce specific evidence showing that a significant percentage of the proposed class provided consent. at 587 (remarking that See, e.g., Toney, 323 F.R.D. without specific evidence, consent defenses cannot defeat Rule 23 predominance); Savanna Group, Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *3-4 (N.D. Ill. Jan. 4, 2013) (St. Eve, J.) (rejecting defendant’s consent objection to class definition because defendant failed to offer specific evidence of consent). “Mere speculation,” which is all AWL has offered here, will not suffice. Toney, 323 F.R.D. at 587. Further, AWL not only failed to pony up specific evidence of consent, entirely. its fact-intensive speculations miss the mark TCPA disclosures must be “clear and conspicuous.” 47 C.F.R. § 64.1200(f)(8)(i). That standard is not a user- dependent inquiry, but rather asks whether a notice would be “apparent to the reasonable consumer.” - 16 - Sullivan, 2017 WL 2378079, at added)). and *7 (citing 47 C.F.R. § 64.1200(f)(3) (emphasis As such, AWL can spin its wheels about screen sizes hearing aids all it likes, but those unsupported suppositions do not help their class certification rejoinder one whit. In short: providing expert specific report conclusions. escape AWL could have strengthened its position by evidence of its of consent own that or introducing contradicted an Young’s Having done neither, AWL now tries to fashion an hatch brainstorming. for itself from little That will not do. more than legal Consent remains a common issue and the claims of the whole class might well rise or fall with that determination. See, Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 318 F.R.D. 712, 725 (N.D. Ill. 2016) (citation omitted); see also, Butler Roebuck & Co., 727 F.3d 796, 798 (7th Cir. 2013). more from AWL, their consent-oriented musings v. Sears, But without pose little rebuttal to Plaintiffs’ Motion for Class Certification. One other threshold issue worth addressing: AWL molds their consent defense into an attack on standing. also If most proposed class members consented, AWL reasons, then most members have no TCPA claim and thus no cognizable injury this - 17 - Court may redress. True, a class “should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant.” Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009) (citation omitted). these proposed Congress action members’ designed and unsolicited But nothing is “apparent” here, where the consent TCPA to is purely provide statutory damages to telephonic advertisements. a hypothetical. private individuals See, right who of receive Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013). Those are exactly the injuries alleged here, and they suffice to confer standing on the Plaintiffs. 2. a. The members. proposed Rule 23(a) Numerosity class contains approximately two million Likely recognizing that a class of this size is “so numerous that joinder of all members is impracticable,” AWL wisely does not contest numerosity. sufficiently numerous. Clearly, the class is See, e.g., Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (holding that a proposed class of forty was “a sufficiently large group to satisfy Rule 23(a)”), abrogated - 18 - on other grounds as recognized in Krieger v. Gast, No. 98 C 3182, 1998 WL 677161, at *6-7 (N.D. Ill. Sept. 22, 1998)). b. Commonality “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury,” Dukes, 564 U.S. at 349-50 (internal quotation marks omitted), and that their “claims ‘depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Phillips v. Sheriff of Cook Cnty., 828 F.3d 541, 551 (7th Cir. 2016) (quoting Dukes, 564 U.S. at 350). Here, all of the allegedly TCPA-violative calls were made by AWL’s autodialers to cell phone numbers obtained after each Plaintiff clicked through the same procedure on the AWL website. highly Still, AWL individualized determine consent. strenuously inquiry objects, will arguing prove that necessary a to See, e.g., Kljajic v. Whirlpool Corp., No. 15-cv-05980, 2017 WL 1862640, at *22 (N.D. Ill. May 9, 2017) (holding that plaintiffs failed to show commonality where there was no common method of proof to facilitate a “once-andfor-all” decision for all would-be class claims). - 19 - There cannot be a common method of proof here, says AWL, because consent will turn upon whether any given user had to scroll down on her particular screen to reveal the consent disclosure and, if so, whether that user actually scrolled down. AWL is correct to say that courts “determine whether issues of individual consent defeat commonality . . . in TCPA cases on a case-by-case basis after evaluating the specific evidence available to prove consent.” (Cl. Cert. Resp. at 16, Dkt. 92 (citing A Custom Heating & Air Conditioning, Inc. v. Kabbage, Inc., No. 16-cv-02513, 2018 WL 488257, at *9 (N.D. Ill. Jan. 18, 2018).) But where, as here, the defendant does not produce any specific evidence of consent, the Court has no basis to evaluate whether that unavailable evidence undermines commonality. Absent any such evidence, all that remains are the common contentions shared among class members that after each of website, them they autodialers. completed each the same received submit unsolicited procedure calls on AWL’s from AWL’s Thus, each Plaintiff’s claim presents a common question: whether AWL’s call violated the TCPA. Perhaps AWL has a consent defense to those claims, but without specific evidence now demonstrating the merit of that proposed defense, its adjudication will have to - 20 - wait. The proposed class satisfies Grp., the LLC, commonality 318 F.R.D. requirement. 64, 74 (N.D. Cf. Ill. Bernal 2016) v. NRA (citation omitted) (“[S]ome degree of factual variation will not defeat commonality provided that common questions yielding common answers can be identified.”). c. Typicality A claim is typical if it “arises from the same event or practice or course of conduct that gives rise to the claims of other class members and . . . [is] based on the same legal theory.” 2009) Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. (citation omitted). This requirement “directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Id. Once again, AWL contends that because many of the class members consented to receive AWL’s call, the class is chockfull of people without valid TCPA claims and no class should be certified “if it is apparent that it contains a great many persons who defendant.” 677 (7th “should be have suffered no injury at the hands of the Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, Cir. 2009) determined (citation with omitted). reference - 21 - to But [the typicality defendant’s] actions, not defendant] with might respect have to against particularized certain class defenses [the members.” CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 725 (7th Cir. 2011) (quoting Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996)). The named Plaintiffs allegedly engaged in the same conduct as the proposed class members and then received substantially similar calls from AWL; this clears the typicality hurdle. d. Adequacy Adequacy involves two inquiries: “(1) the adequacy of the named plaintiffs as representatives of the proposed class’s myriad members, with their differing and separate interests, and (2) the adequacy of the proposed class counsel.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011) (citation omitted). A proposed class representative is inadequate if his interests are “antagonistic or conflicting” with those of the absent class members, Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), or if he is subject to a defense not applicable to the class as a whole, see, CE Design, 637 F.3d at 726. First, AWL presents a repackaged version of the consent argument. The named Plaintiffs aver that they never actually - 22 - saw the consent disclosures, but other would-be class members might have. According to AWL, this possible distinction could subject the named Plaintiffs to “additional defenses” that do not necessarily apply to the rest of the class. Resp. at defenses” discussed ignores 25, Dkt. 92.) contemplate at that conspicuous” length in whether is an To the same this a the extent TCPA objective these consent opinion, inquiry perspective of a reasonable consumer. “additional defense AWL’s disclosure (Cl. Cert. already argument is again “clear conducted from and the See, Sullivan, 2017 WL 2378079, at *7) (citing 47 C.F.R. § 64.1200(f)(3)). If AWL has an entirely different defense in mind, however, it should have articulated it. “The federal legal arguments for litigants.” courts will not invent Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995), as amended, (Apr. 7, 1995). This first argument fails. AWL marshals two other arguments against the adequacy of the named representatives: (1) named Plaintiff Criollo is not seeking damages, so he is presumptively inadequate; and (2) Criollo does not understand the nuances of his case. contentions are meritless. These First, Defendants cite Criollo’s deposition as evidence that he is not seeking damages, but - 23 - they wholly ignore the very next lines in where Criollo confirms that he actually is. the transcript, (See, Cl. Cert. Reply at 18, Dkt. 96 (citing Criollo Dep. Tr. 31:15-32:6).) Second, nowhere in Rule 23 or the case law applying it is there a requirement that named plaintiffs have a firm grasp of the legal intricacies of their cases. counsel is for. That is what adequate Criollo will not be faulted nor the proposed class penalized because the named Plaintiff does not happen to have a law degree. The named Plaintiffs do not have any interests antagonistic to the proposed class and there is no reason proposed by AWL or suggested anywhere else in the record to suspect that Plaintiffs’ counsel are at odds with the proposed class’s best interests. As to the adequacy of counsel, Plaintiffs represent that their present counsel, Lieff Cabraser Heimann & Bernstein, LLP (“LCHB”) and experienced Kozonis & class-action Associates Ltd. practitioners who (“Kozonis”), have are litigated dozens of TCPA cases, including several large settlements, and have been appointed to lead many such cases in this District. (See, generally, Selbin Decl., Dkt. 76; Klinger Decl., Dkt. 77.) AWL does not contest any of these assertions nor suggest a reason why LCHB and Kozonis fall short of being “qualified, - 24 - experienced, and generally litigation,” as required. able to conduct the proposed Wheeler v. Midland Funding LLC, No. 15 C 11152, 2018 WL 1920254, at *4 (N.D. Ill. Apr. 24, 2018) (quoting Susman v. Lincoln Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977)). The Court agrees that these counsel are capable and that the requirements for adequacy are met in this case. 3. Rule 23(b)(3) Requirements a. Predominance Under Rule 23(b)(3), questions of law or fact common to the class affecting members only must individual predominate members. over any “[T]he questions requirement of predominance is not satisfied if ‘individual questions . . . overwhelm questions common to the class.’” Butler, 727 F.3d at 801 (7th Cir. 2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 468 (2013)). Predominance fails where “affirmative defenses will require a person by person evaluation precludes of conduct individual to determine recovery.” whether Bernal, 318 [a defense] F.R.D. at 75 (quoting Clark v. Experian Info., Inc., 233 F.R.D. 508, 512 (N.D. Ill. 2005), aff’d, 256 Fed. App’x 818 (7th Cir. 2007)). But again, vague assertions about consent cannot elevate alleged individualized issues above common questions of law or - 25 - fact. See, Toney, 323 F.R.D. at 587 (citation omitted). Finally, the predominance inquiry turns upon whether common questions predominate, not whether those questions will or are likely to ultimately be answered in favor of the class. See, Amgen, 568 U.S. at 459. The Court will not beat to death AWL’s unsurprising rebuttal. As above, AWL contends consent issues predominate. The disagrees. Court Because AWL produced zero specific evidence showing that some proposed members consented, AWL’s ability “to invoke consent as an affirmative defense to each class member is uniform,” and that defense will likely prove meritorious or ineffective against the class in full. Sullivan, 2017 WL 2378079, at *9. case is whether the proposed See, The key question in this class members submitting their information on AWL’s website. consented by Despite AWL’s inventive characterizations to the contrary, that question may be resolved in one stroke. See, Butler, 727 F.3d at 801 (citation omitted). b. Superiority Rule 23(b)(3) also requires that a plaintiff demonstrate that a class action is superior to other available methods of adjudication. Class certification - 26 - is usually considered a superior method of adjudicating claims involving standardized conduct, and that is exactly what is at play here. See, Cicilline v. Jewel Food Stores, Inc., 542 F. Supp. 2d 831, 838 (N.D. Ill. 2008). The proposed class represents two million basically identical lawsuits. single, representative class Knocking them all out via a would judicial and party resources. be an efficient use of See, Hinman v. M & M Rental Ctr., Inc., 545 F. Supp. 2d 802, 807 (N.D. Ill. 2008). Class certification is a superior vehicle for advancing the claims at bar, and Rule 23(b)(3) is accordingly satisfied. 4. A Rule parameters 23 based class on Ascertainability must objective be clearly criteria. defined See, and Mullins Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). its v. The question here is not one of administrative feasibility, but rather definition: An ascertainable class is comprised of “a particular group, harmed during a particular time frame, in a particular location, in a particular way.” Mullins, 795 F.3d at 660. AWL argues the putative class is not ascertainable because it might contain a substantial number of people who consented to being called and thus have no claim under the - 27 - TCPA. See, Oshana v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th Cir. 2006) (noting that overbroad classes that contain members without valid claims fail for lack of ascertainability). AWL cites two cases in support of its position: Jamison v. First Credit Services, No. 12-cv-04415, 2013 WL 3872171, (N.D. Ill. July 29, 2013), Riverboat/Casino 2011) (both grounds). and Vigus Cruises, denying These Inc., class v. 274 Southern F.R.D. certification authorities do little 229 Illinois (S.D. Ill. on ascertainability to help AWL here. First, both were decided before the Seventh Circuit’s opinion in Mullins, which ascertainability expressly standard rejected requiring the “heightened” consideration of administrative feasibility and an evaluation of the validity of the proposed members’ claims. Toney, 323 F.R.D. inappropriately at 582 applied a & 795 F.3d at 657-58; see, n.11 clear (remarking and convincing that Jamison standard as opposed to the preponderance standard and, being pre-Mullins, was not persuasive on the issue of ascertainability”). Second, the defendants in both Jamison and Vigus made a key move that AWL never did: They both provided specific evidence of consumers’ individualized consent, elevating their consent defenses beyond mere legal conjecture. - 28 - See, Toney, 323 F.R.D. at 582 (characterizing Jamison); Sullivan, 2017 WL 2378079, at *9 (characterizing Vigus). The Plaintiffs have satisfied the requirement under the Mullins standard. forth a method of identifying ascertainability Beyond simply setting the class members, as is required, the Plaintiffs have actually identified, using call data provided by AWL, the approximately individuals who comprise the class. two million This satisfies Rule 23. Cf. Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 248 (N.D. numbers Ill. 2014) established (holding a that list “sufficiently of 930,000 phone ascertainable” TCPA class). IV. CONCLUSION For the reasons stated herein, AWL’s Daubert Motion (Dkt. 70) is denied. Plaintiffs’ Motion to Certify Class (Dkt. 75) is granted. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: June 25,2018 - 29 -