Wilcox v. Swapp et al, No. 2:2017cv00275 - Document 109 (E.D. Wash. 2019)
Court Description: ORDER Granting 61 Plaintiff's Motion for Class Certification. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator)
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Wilcox v. Swapp et al Doc. 109 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Jan 25, 2019 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 JADE WILCOX on behalf of herself and all others similarly situation, NO: 2:17-CV-275-RMP 8 Plaintiff, 9 v. ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION 10 11 12 13 JAMES CRAIG SWAPP, individually; and SWAPP LAW, PLLC, doing business as Craig Swapp and Associates, Defendants. 14 15 BEFORE THE COURT is Plaintiff Jade Wilcox’s Motion for Class 16 Certification, ECF No. 61. Ms. Wilcox seeks to certify a plaintiff class of drivers 17 whose personal information was obtained and used by Defendants James Craig 18 Swapp and Swapp Law PLLC (collectively, “Defendants”) through their practice 19 of purchasing Police Traffic Collision Reports (“PTCRs”) created with motor 20 vehicle records between September of 2013 and June of 2017. Id. A hearing was 21 held on this motion on December 13, 2018. Ms. Wilcox was represented by ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 1 Dockets.Justia.com 1 Robert Joseph Barton, Thomas Jarrard, and Marcus Sweetser. Defendants were 2 represented by Barbara Duffy and Ryan McBride. The Court has considered the 3 parties’ arguments, briefing, and the record, and is fully informed. 4 5 BACKGROUND Factual Allegations 6 The following are facts alleged in Ms. Wilcox’s first amended complaint, 7 ECF No. 69. Following car accidents in Washington, the Washington State Patrol 8 (“WSP”) prepares PTCRs using a standardized collision report form. Id. at 8. 9 Before this Court issued a preliminary injunction in the Batiste case requiring the 10 WSP to institute procedures to redact personal information, the WSP would sell 11 these unredacted records to any third party who would ask and pay for them. 1 Id. 12 Ms. Wilcox claims that the PTCRs are prepared using a software called 13 SECTOR. ECF No. 69 at 10. SECTOR allows officers to scan the bar code on a 14 driver’s license or a vehicle registration to auto-populate the PTCR form with a 15 driver’s personal information. Id. The data are placed on the bar codes by the 16 Washington State Department of Licensing (“DOL”) when the DOL creates the 17 licenses and registrations. Id. The information scanned from a driver’s license’s 18 bar code includes a driver’s name, address, license number, and date of birth, 19 20 1 21 The Court has since dissolved that preliminary injunction. See Wilcox v. Batiste, No. 2:17-CV-122-RMP, 2018 WL 6729791 (E.D. Wash. Dec. 21, 2018). ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 2 1 among other things. Id. at 10–11. The information scanned from a motor vehicle 2 registration’s bar code includes a driver’s name and home address, as well as 3 information about the driver’s vehicle. Id. 4 Ms. Wilcox alleges that Defendants purchased more than 10,000 of these 5 PTCRs from the WSP between 2013 and 2017. ECF No. 69 at 13. Defendants 6 would then use the personal information on the PTCRs to send letters and 7 pamphlets to the persons involved in the accidents to solicit clients for Defendants’ 8 automobile personal injury practice. Id. at 15. The letters would contain 9 Defendant Craig Swapp’s signature. Id. 10 Ms. Wilcox claims that she was involved in two separate car accidents on 11 August 1, 2015, and on July 11, 2016. ECF No. 69 at 17–18. She alleges that 12 Defendants purchased the PTCRs created as a result of these accidents. Id. at 18. 13 Ms. Wilcox alleges that Defendants sent her a letter advertising their services on 14 July 14, 2016, using Plaintiff’s personal information gleaned from her Collision 15 Reports. Id. The letter was signed by Defendant Craig Swapp. Id. 16 Class Claims 17 Based on Defendants’ conduct, Ms. Wilcox alleges that Defendants violated 18 the DPPA each time they obtained and used class members’ personal information 19 to solicit clients for Defendants’ automobile injury practice. ECF No. 69. The 20 DPPA “sets forth the three elements giving rise to liability, i.e., that a defendant (1) 21 knowingly obtained, disclosed or used personal information, (2) from a motor ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 3 1 vehicle record, (3) for a purpose not permitted.” Howard v. Criminal Info. Servs., 2 Inc., 654 F.3d 887, 890–91 (9th Cir. 2011) (quoting Thomas v. George, Hartz, 3 Lundeen, Fulmer, Johnstone, King and Stevens, P.A., 525 F.3d 1107, 1111 (11th 4 Cir. 2008)). 5 Proposed Class 6 7 8 9 10 Ms. Wilcox submits the following proposed class definition to be certified by the Court: All drivers identified in Police Traffic Collision Reports whose Personal Information, as defined by the DPPA, was derived from a Department of Licensing record (e.g. license, registration or database) and the Report was obtained by the Swapp Law Firm (d/b/a Craig Swapp & Associates) or Mr. Swapp from the Washington State Patrol between September 1, 2013 and June 23, 2017. 11 ECF No. 61 at 10. The proposed class would exclude Defendants’ current and 12 former clients; individuals identified on the same PTCRs as Defendants’ clients; 13 individuals who provided Defendants written consent to obtain and use their 14 personal information; employees of and attorneys for Defendants and their 15 immediate families; and the presiding judge and anyone working in the presiding 16 judge’s chambers and their families. Id. 17 LEGAL STANDARD 18 To be certified, a proposed class “must meet the four threshold requirements 19 of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and 20 adequacy of representation.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 4 1 Cir. 2013). “[C]ertification is proper only if ‘the trial court is satisfied, after a 2 rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied . . . .’” 3 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011) (quoting Gen. Tel. 4 Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The putative class also must 5 comply with Rule 23(b), which defines three types of classes. Id. 6 Although class certification often requires some consideration of the 7 underlying claims, “Rule 23 grants courts no license to engage in free-ranging 8 merits inquiries at the certification stage. Merits questions may be considered to 9 the extent—but only to the extent—that they are relevant to determining whether 10 the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. 11 Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). 12 DISCUSSION 13 Rule 23(a) Requirements 14 Numerosity 15 Plaintiffs first must establish that “the class is so numerous that joinder of all 16 members is impracticable.” Fed. R. Civ. P. 23(a)(1). This condition “requires 17 examination of the specific facts of each case and imposes no absolute limitations.” 18 Gen. Tel. Co. of the Nw. v. E.E.O.C., 446 U.S. 318, 330 (1980). 19 20 Defendants do not dispute numerosity. See ECF No. 85. The Court finds that Ms. Wilcox has proven the numerosity element of Rule 23(a). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 5 1 Commonality 2 The second prerequisite to certification is that “there are questions of law or 3 fact common to the class.” Fed. R. Civ. P. 23(a)(2). Ms. Wilcox argues that three 4 questions are common to the class. ECF No. 61 at 18. Defendants argue that the 5 questions are not so common as to be answered the same across the entire class. 6 ECF No. 85 at 18. 7 A competently-crafted class complaint always raises common questions, so 8 “commonality requires that the class members’ claims ‘depend upon a common 9 contention’ such that ‘determination of its truth or falsity will resolve an issue that 10 is central to the validity of each [claim] in one stroke.’” Mazza v. Am. Honda 11 Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Wal-Mart, 564 U.S. at 350). 12 The plaintiff must demonstrate that the class members have suffered the same 13 injury in the same way. Wal-Mart, 564 U.S. at 349–50. “This does not, however, 14 mean that every question of law or fact must be common to the class; all that Rule 15 23(a)(2) requires is ‘a single significant question of law or fact.’” Abdullah v. U.S. 16 Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Mazza, 666 F.3d at 17 589) (emphasis in original). 18 Ms. Wilcox presents three potential common questions in her motion for 19 class certification: (1) whether information on the PTCRs was derived from motor 20 vehicle records; (2) whether Defendants knowingly obtained the class members’ 21 personal information; and (3) whether the information was obtained for a ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 6 1 permissible purpose under the DPPA. ECF No. 61 at 18. In response, Defendants 2 argue that these questions might be common to the class, but that they cannot be 3 answered in a single stroke. ECF No. 85 at 19. 4 Defendants argued in their motion to dismiss that the answer to the first 5 question would be dispositive of the class action complaint, which supports the 6 conclusion that the first question is common to the class. ECF No. 108. The 7 second question is equally common because Ms. Wilcox alleges, and Defendants 8 do not dispute, that Defendants purchased all PTCRs in the same way. ECF No. 9 61-7 at 15–16. Last, because the PTCRs were all purchased to solicit clientele for 10 Defendants, the third question is common to the entire class as well. For these 11 reasons, the Court finds that Ms. Wilcox has presented questions common to the 12 entire class and has satisfied the commonality requirement of Rule 23(a). 13 Typicality 14 The next prerequisite for certifying a putative class is that “the claims or 15 defenses of the representative parties are typical of the claims or defenses of the 16 class.” Fed. R. Civ. P. 23(a)(3). Ms. Wilcox argues that her claim against 17 Defendants is typical of the class members’ claims against Defendants because her 18 injuries arose from the same course of conduct that created the class members’ 19 injuries: Defendants’ purchasing of PTCRs that contained drivers’ personal 20 information. ECF No. 61 at 20. Defendants argue that Ms. Wilcox’s PTCRs were 21 created differently from the typical class member’s PTCR, and that Ms. Wilcox’s ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 7 1 different versions of the facts in her case makes her claims atypical of the class. 2 ECF No. 85 at 20. 3 “The purpose of the typicality requirement is to assure that the interest of 4 the named representative aligns with the interests of the class.” Hanon v. 5 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “Typicality refers to the 6 nature of the claim or defense of the class representative, and not to the specific 7 facts from which it arose or the relief sought.” Id. (internal citation and quotation 8 marks omitted). “We do not insist that the named plaintiffs’ injuries be identical 9 with those of the other class members, only that the unnamed class members have 10 injuries similar to those of the named plaintiffs and that the injuries result from the 11 same, injurious course of conduct.” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 12 2014) (internal citations and quotation marks omitted). Defenses unique to the 13 named plaintiff that threaten to become the focus of the litigation would defeat 14 typicality. Hanon, 976 F.2d at 508. 15 Ms. Wilcox alleges that the WSP created PTCRs from her two car accidents 16 and that Defendants knowingly obtained and used those PTCRs for an improper 17 purpose. See ECF No. 69. Under Ms. Wilcox’s proposed class definition, the 18 class members were all injured the same way: Defendants purchased and used 19 class members’ PTCRs with the members’ personal information for the purpose of 20 soliciting clients. ECF No. 61 at 10 (proposed class definition); ECF No. 69 (first 21 amended complaint). While Defendants have not yet answered Ms. Wilcox’s first ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 8 1 amended complaint, Defendants’ affirmative defenses to Ms. Wilcox’s original 2 complaint are not unique to Ms. Wilcox. ECF No. 41 at 10 (Defendants’ Second 3 Amended Answer to Complaint). Thus, at the very least, Ms. Wilcox’s injury and 4 the class members’ injuries result from the same alleged injurious course of 5 conduct by Defendants: the purchase of personal information for purposes of 6 soliciting clients. See Parsons, 754 F.3d at 685. 7 Defendants make two arguments against typicality. ECF No. 85 at 20. First, 8 they argue that the variation in the way PTCRs were created shows a lack of 9 typicality among the class members’ claims. Id. Second, they argue that Ms. 10 Wilcox changed her story throughout this litigation, making her an unreliable 11 plaintiff and thus atypical to the class. Id. at 20–21. 12 Defendants’ first argument against typicality is that there is too much 13 variation among the creation of each class member’s PTCR. ECF No. 85 at 20. In 14 support of their argument, Defendants cite two failed attempts to certify DPPA 15 classes in other states, Pavone and Truesdell. Id. at 20–21. In Pavone, the district 16 court declined to certify a DPPA class because the presence of a driver’s license 17 number on a crash report did not prove that the crash report was created with a 18 driver’s license. Pavone v. Meyerkord & Meyerkord, LLC, 321 F.R.D. 314, 321– 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 9 1 22 (N.D. Ill. 2017).2 In Truesdell, the district court declined to certify a DPPA 2 class because each class member would have to prove how his or her crash report 3 was created before holding the defendant liable for a DPPA violation. Truesdell v. 4 Thomas, No. 5:13-cv-522-Oc-10PRL, 2015 WL 12681655, *9 (N.D. Fla. Feb. 13, 5 2015). 6 The proposed class definition in this case, however, limits the class to only 7 those drivers whose PTCRs were created in eastern Washington with motor vehicle 8 records. ECF No. 61 at 10. This limitation distinguishes Ms. Wilcox’s proposed 9 class definition from the proposed classes in Pavone and Truesdell. Pavone, 321 10 F.R.D. at 317–18; Truesdell, 2015 WL 12681655, at *4. Because of this limitation 11 in the proposed class definition, Ms. Wilcox’s class does not suffer from the same 12 typicality deficiencies that the proposed classes in Pavone and Truesdell presented. 13 Further, minor variation in how each driver’s PTCR was made in eastern 14 Washington, whether with SECTOR or manual entry by reading from a driver’s 15 license, does not defeat typicality. See Hanon, 976 F.2d at 508. 16 Defendants’ second argument against typicality is that Ms. Wilcox lacks 17 credibility as a named plaintiff. If a named plaintiff in a putative class action lacks 18 credibility, the proposed class may not have typicality. Fosmire v. Progressive 19 20 21 2 The Court notes that this line of argument from Pavone arose under a predominance analysis, rather than a typicality analysis, but considers the argument nonetheless. ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 10 1 Max Ins. Co., 277 F.R.D. 625, 633 (W.D. Wash. 2011). Lack of credibility is 2 considered a unique defense that could potentially preoccupy the class’s claims at 3 trial. Id. However, “credibility issues will defeat typicality only where those 4 credibility problems are directly relevant to the issues in the case.” In re Myford 5 Touch Consumer Litig., No. 13-cv-03072-EMC, 2016 WL 7734558, *11 (N.D. 6 Cal. Sept. 14, 2016). A named plaintiff’s credibility issues only affect typicality 7 when those issues are “so sharp as to jeopardize the interests of absent class 8 members.” Harris v. Vector Marketing Corp., 753 F. Supp. 2d 996, 1015 (N.D. 9 Cal. 2010). Defeating typicality with credibility issues is an extremely difficult 10 standard to satisfy and is usually limited to “flagrant cases where putative class 11 representatives display an alarming unfamiliarity with the suit, display an 12 unwillingness to learn about the facts underlying their claims, or are so lacking in 13 credibility that they are likely to harm their case.” Peterson v. Ala. Commc’ns Sys. 14 Grp., Inc., No. 3:12-CV-00090-TMB, 2018 WL 4100665, at *11 (D. Ala. Aug. 28, 15 2018) (internal quotations omitted). 16 Defendants claim that Ms. Wilcox’s story has changed over the course of the 17 litigation. In an answer to Defendants’ interrogatories, Ms. Wilcox stated that she 18 only provided her name and phone number to the police officers, but otherwise 19 allowed them to use the personal information on her license and registration to 20 create the PTCR. ECF No. 85 at 20; ECF No. 86-10 at 4. However, Defendants 21 claim that the address on Ms. Wilcox’s license is different from the address on her ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 11 1 PTCRs. ECF No. 85 at 20–21; ECF No. 86-11. Further, they claim that Ms. 2 Wilcox eventually admitted to giving the police officer a handwritten statement 3 with personal information at the scene of her second car accident. ECF No. 85 at 4 21; ECF No. 62-3 at 8–10. Defendants claim that these constant changes in Ms. 5 Wilcox’s story make her an untrustworthy witness, and thus atypical to the class’s 6 claims. ECF No. 85 at 21. 7 In response, Ms. Wilcox argues this slight change in her story came from a 8 memory lapse at the time she answered the interrogatories rather than willful 9 deceit. ECF No. 100 at 15. She claims that the memory lapse will not preoccupy 10 the claims at trial because they are irrelevant to the ultimate claim that Defendants 11 violated the DPPA by purchasing the PTCRs created with her personal 12 information. Id. Further, she states that she explained her lapse in memory at her 13 deposition and is not lying to Defendants about what happened at each accident. 14 Id. 15 This type of memory lapse does not expose Ms. Wilcox to a unique defense 16 of credibility that might defeat typicality. Defendants portray Ms. Wilcox as 17 someone who is constantly changing her story, when Ms. Wilcox has been 18 supplementing the facts as her memory of the events in question becomes clearer. 19 This is a far cry from the named plaintiff who is unfamiliar with the suit and lacks 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 12 1 so much credibility that it would harm the unnamed class members’ cases. See 2 Peterson, 2018 WL 4100665, at *11. 3 4 The Court finds that Ms. Wilcox has satisfied the typicality requirement of Rule 23(a). 5 Adequacy of Representation 6 The final Rule 23(a) requirement is that “the representative parties will fairly 7 and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The 8 Court considers two issues when analyzing adequacy of representation: “(1) do the 9 named plaintiffs and their counsel have any conflicts of interest with other class 10 members and (2) will the named plaintiffs and their counsel prosecute the action 11 vigorously on behalf of the class?” Hanlon v. Chrysler Corp., 150 F.3d 1011, 12 1020 (9th Cir. 1998). 13 Defendants did not contest adequacy of representation, either as to Ms. 14 Wilcox or class counsel. See ECF No. 85. Therefore, the Court finds that Ms. 15 Wilcox has proven typicality. 16 Rule 23(b) Requirements 17 After satisfying the four Rule 23(a) factors, the party moving for class 18 certification must meet the requirements for one of the three class definitions in 19 Rule 23(b). Fed. R. Civ. P. 23(b). Ms. Wilcox argues that her class satisfies the 20 requirements of a damages class under Rule 23(b)(3). ECF No. 61 at 24. To 21 certify a class under Rule 23(b)(3), the court must find “that the questions of law or ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 13 1 fact common to class members predominate over any questions affecting only 2 individual members, and that a class action is superior to other available methods 3 for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 4 Predominance 5 Ms. Wilcox argues that issues common to the class members predominate 6 individual issues. ECF No. 61 at 24. Defendants argue that individual issues 7 predominate and that the class definition is not clear and definite. ECF No. 85 at 8 15. 9 10 Common Questions Predominate “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are 11 sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 12 Inc. v. Windsor, 521 U.S. 591, 623 (1997). This inquiry overlaps with the 13 commonality requirement in Rule 23(a)(2), although the predominance 14 requirement is much more demanding. Abdullah, 731 F.3d at 957, 963. 15 Predominance is met by showing that the common questions can be proven by 16 evidence common to the class. Amgen, 568 U.S. at 467. “The predominance 17 inquiry ‘asks whether the common, aggregation-enabling, issues in the case are 18 more prevalent or important than the non-common, aggregation-defeating, 19 individual issues.’” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 20 (2016) (quoting 2 W. Rubinstein, Newberg on Class Actions § 4:49 (5th ed. 21 2012)). Common questions predominate even if some lingering issues require ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 14 1 individual resolution. Id. (citing C. Wright, A. Miller, & M. Kane, Federal 2 Practice & Procedure § 1778 (3d ed. 2005)); see also Torres v. Mercer Canyons, 3 Inc., 835 F.3d 1125, 1136 (9th Cir. 2016) (“[E]ven a well-defined class may 4 inevitably contain some individuals who have suffered no harm as a result of a 5 defendant’s unlawful conduct.”). 6 Ms. Wilcox argues that the three questions common to the class predominate 7 over any individual issues: whether information on PTCRs was derived from motor 8 vehicle records; whether Defendants knowingly obtained the class members’ 9 personal information; and whether the information was obtained for a permissible 10 purpose. ECF No. 61 at 25. These three questions are central to the ultimate 11 question as to whether Defendants are liable for DPPA violations. See 18 U.S.C. § 12 2724(a). The questions can also be proven by evidence common to the class, as 13 Ms. Wilcox alleges that Defendants obtained and used the class members’ personal 14 information by the same method and for the same reasons. ECF No. 69. 15 Defendants argue that three individual issues prevent common questions 16 from predominating this current litigation. ECF No 85 at 24. First, they argue that 17 the sources of the information on the PTCRs are variable and unknown. Id. 18 Second, they argue that Defendants’ knowledge is an individualized question. Id. 19 at 30. Third, they argue that damages are an individualized question as well. Id. at 20 31. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 15 1 First, Defendants argue that the sources of information used to create the 2 PTCRs are variable and unknown. ECF No. 85 at 24. However, this argument is 3 more relevant to issues in identifying the class members rather than whether there is 4 predominance of common questions of fact or liability among the class members. 5 Questions of predominance are limited to those among class members, and questions 6 that relate to those outside of the class have no bearing on findings of predominance. 7 See Fed. R. Civ. P. 23(b)(3) (“the court finds that the questions of law or fact 8 common to class members predominate over any questions affecting only individual 9 members . . . .”). Further, Plaintiffs argue that the class definition excludes those 10 drivers whose PTCRs were not made by motor vehicle records, so there will be no 11 individual questions about the information used to create the PTCRs. ECF No. 61 at 12 10. 13 Second, Defendants argue that Defendants’ knowledge is an individualized 14 question because DPPA plaintiffs need to prove that Defendants obtained, disclosed, 15 or used personal information that they knew came from a motor vehicle record. 16 ECF No. 85 at 30. But Defendants’ interpretation of the DPPA is incorrect.3 When 17 tasked with interpreting a statute, the district court gives words their plain and 18 3 19 20 21 The Court finds it necessary to consider the merits of a DPPA claim to determine the validity of Defendants’ second argument against predominance. See Amgen, 568 U.S. at 466 (“Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 16 1 ordinary meanings. Perrin v. United States, 444 U.S. 37, 43 (1979). The meaning 2 of a statute “will typically heed the commands of its punctuation,” but an analysis 3 based on punctuation alone is usually incomplete. U.S. Nat’l Bank of Or. v. Indep. 4 Ins. Agents of Am., Inc., 508 U.S. 439, 454–55 (1993). Typically, adverbs in statutes 5 modify verbs. See United States v. Chi Tong Kuok, 671 F.3d 931, 945 (9th Cir. 6 2012). 7 Looking at the plain text of section 2724(a), a person is liable for a DPPA 8 violation if that person “knowingly obtains, discloses, or uses personal information, 9 from a motor vehicle record, for a purpose not permitted.” 18 U.S.C. § 2724(a). 10 Because the rest of the statute is offset by commas, the “knowingly” requirement in 11 section 2724(a) only applies to the portion before the commas, which is the first 12 element of the statute. See U.S. Nat’l Bank of Or., 508 U.S. at 454–55. Further, 13 beyond reasons related to punctuation, the first element of a DPPA claim contains 14 the action verbs required to commit a DPPA violation, and with the term 15 “knowingly” being an adverb, it follows that “knowingly” only applies to the 16 requisite verbs. See Chi Thon Kuok, 671 F.3d at 945. 17 Using these tools of statutory construction, several courts interpreting section 18 2724(a) have found that the “knowingly” scienter only applies to the first element of 19 a DPPA claim because of the commas that offset the rest of the statute. See Wiles v. 20 Worldwide Info., Inc., 809 F. Supp. 2d 1059, 1081 (W.D. Mo. 2011) (“The only 21 reason to use commas to isolate the clause ‘from a motor vehicle record’ is to ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 17 1 confine the adverb ‘knowingly’ to modifying the act of obtainment, disclosure, or 2 use.”); Rios v. Direct Mail Express, 435 F. Supp. 2d 1199, 1205 (S.D. Fla. 2006) 3 (“Thus, under the express language of the DPPA the term ‘knowingly’ only modifies 4 the phrase ‘obtains, discloses, or uses personal information.’”). When courts 5 identify the elements of a DPPA claim, the “knowingly” requirement is only applied 6 to the first element. See, e.g., Howard, 654 F.3d at 890–91 (“. . . that a defendant (1) 7 knowingly obtained, disclosed, or used personal information, (2) from a motor 8 vehicle record, (3) for a purpose not permitted.”). Because of the commas that offset 9 the “knowingly” requirement from the other two elements of a DPPA claim, 10 “knowingly” only defines the first element, which is that the person “obtains, 11 discloses or uses personal information.” 18 U.S.C. § 2724(a). 12 With this interpretation of section 2724(a) in mind, the Court turns to 13 Defendants’ argument that knowledge is an individualized question. According to 14 the complaint, Defendants acquired the class members’ personal information the 15 same way: purchasing PTCRs from the WSP. ECF No. 69 at 13. Additionally, 16 Defendants used the personal information the same way: soliciting individuals for 17 Defendants’ car accident injury law practice. Id. at 15. Ms. Wilcox does not need to 18 prove that Defendants knew that the PTCRs were created with motor vehicle 19 records. Therefore, knowledge is not an individualized question. 20 Third, Defendants argue that damages in this case are an individualized 21 question. ECF No. 85 at 31. But the potential for individual damages calculations, ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 18 1 alone, cannot defeat class certification. Yokoyama v. Midland Nat’l Life Ins. Co., 2 594 F.3d 1087, 1089 (9th Cir. 2010). Nonetheless, Defendants argue that damages 3 cannot be “feasibly and efficiently calculated,” which is something a class action 4 plaintiff must show before the predominance requirement is met. See Lilly v. Jamba 5 Juice Co., 308 F.R.D. 231, 244 (N.D. Cal. 2014). To any extent Ms. Wilcox is 6 required to prove that damages are feasibly and efficiently calculated, she already 7 has conceded that the class only seeks the statutory minimum for damages, $2500 8 per member. ECF No. 100 at 21–22; 18 U.S.C. § 2724(b)(1). Therefore, any 9 individual questions of damages do not defeat Ms. Wilcox’s showing that common 10 11 12 questions of law and fact predominate over individual questions. Clear and Definite Class Definition Ms. Wilcox argues the class is clear and definite because the class members 13 are identified using objective criteria. ECF No. 61 at 16. Defendants argue that 14 the class is not ascertainable because the class members cannot be readily 15 identified. ECF No. 85 at 15. 16 Defendants refer to the requirement that a class definition be clear and 17 definite as ascertainability. See ECF No. 85 at 15 (“[C]ourts require plaintiffs to 18 define the class so that members are ‘ascertainable[.]’”). Some district courts in 19 the Ninth Circuit have held that a class should be “ascertainable” before class 20 certification is granted. See, e.g., Xavier v. Philip Morris USA Inc., 787 F. Supp. 21 2d 1075, 1089 (N.D. Cal. 2011) (“In order for a proposed class to satisfy the ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 19 1 ascertainability requirement . . .”). However, the Ninth Circuit has never adopted 2 an “ascertainability” requirement that other circuits have adopted. See Briseno v. 3 ConAgra Foods, Inc., 844 F.3d 1121, 1124 n.4 (9th Cir. 2017) (“ConAgra cites no 4 other precedent to support the notion that our court has adopted an 5 ‘ascertainability’ requirement. This is not surprising because we have not.”). 6 Instead, the Ninth Circuit has held that a class must be “‘sufficiently 7 cohesive to warrant adjudication by representation’” as a matter to be considered 8 under the question of Rule 23(b)(3) predominance. Torres, 835 F.3d at 1135 9 (quoting Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 10 2009)). Accordingly, the class must be defined with objective criteria. Xavier, 787 11 F. Supp. 2d at 1089. Defining a class with subjective criteria, such as class 12 members’ feelings or beliefs, would only result in an unmanageable class. Id. 13 However, this analysis does not require the moving party to demonstrate an 14 administratively feasible way to identify class members. Briseno, 844 F.3d at 15 1133. 16 Ms. Wilcox argues that the class definition is clear and definite because it is 17 based on objective criteria. ECF No. 61 at 16. She identifies the criteria in three 18 parts: “Is the person (1) a driver identified on a PTCR that Defendants obtained 19 from the WSP between September 1, 2013 and June 23, 2017? (2) did the personal 20 information originate from [sic] DOL record? and (3) Was the person not a client 21 of Defendants or listed on the same PTCR as a client, not employed by ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 20 1 Defendants, or the Court and did not provide written consents?” Id. She states that 2 the defining factors of her class are objective and not based on subjective 3 evaluation of a potential class member’s feelings or beliefs. Id. at 16–17. 4 Defendants argue that class certification is improper because the facts cannot 5 support a clear and definite class definition. ECF No. 85 at 16. They state that a 6 PTCR does not show whether it was made using the auto-populate feature 7 provided by SECTOR, manual entry by the police officer from reading a driver’s 8 license or registration, or manual entry by the police officer based off the 9 information the driver tells the officer directly. Id. at 16–17. Because of this 10 inability to determine the source of a PTCR’s creation, Defendants argue that any 11 class created will not be defined by objective or verifiable criteria. Id. 12 Despite Defendants’ arguments, the determining factor in creating a clear 13 and definite class definition is whether class members are determined with “an 14 objective criterion.” Briseno, 844 F.3d at 1124. In Briseno, the objective criterion 15 was “whether class members purchased Wesson oil during the class period.” Id. 16 While there would be difficulties in determining who purchased Wesson oil during 17 the class period, those difficulties did not prevent class certification, because Rule 18 23 does not require plaintiffs to present a simple or administratively feasible 19 method of identification to win class certification. Id. at 1133. The Briseno court 20 rejected several arguments in favor of an administrative feasibility requirement, 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 21 1 including the potential for fraudulent claims, the due process rights of defendants 2 or absent class members, and mitigating administrative burdens. Id. at 1127–33. 3 In this case, Ms. Wilcox has presented objective criteria in her proposed 4 class definition: whether class members’ personal information was received by 5 Defendants through their purchase of PTCRs made from a Department of 6 Licensing record. ECF No. 61 at 10. The criteria are objective because they are 7 not based on class members’ feelings or beliefs; it is based on a fact: either 8 Defendants obtained or used the class members’ personal information through 9 PTCRs created with motor vehicle records, or they did not. Potential difficulties 10 presented by the identification process does not defeat an attempt for class 11 certification. Briseno, 844 F.3d at 1133. 12 At oral argument, Defendants tried to distinguish Briseno from the current 13 case by arguing that Briseno involved identifying who gets to share the damages 14 from the litigation, whereas this case involves identifying how to even establish the 15 extent of Defendants’ liability. Defendants seemingly invite the Court to consider 16 the merits of the case at class certification, which the Court may not do unless it is 17 essential to the question of class certification. Amgen, 568 U.S. at 466. Under 18 Defendants’ theory, class certification is improper unless the class plaintiffs can 19 establish at the outset the potential for liability, or the “pot” of recoverable 20 monetary damages. This, essentially, asks the Court to make a merits 21 determination by requiring the Court to frame the scope of Defendants’ liability ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 22 1 before certification. This sort of inquiry is improper at this time, and the Court 2 declines to do so. See id. 3 The Ninth Circuit already has heard, and rejected, Defendants’ argument on 4 class member identification at the litigation stage. Briseno, 844 F.3d at 1125. The 5 Ninth Circuit held that Rule 23 does not require a class plaintiff to demonstrate an 6 administratively feasible means of identifying absent class members. Id. at 1126. 7 It considered several arguments in favor of an identification requirement, including 8 mitigation of administrative burdens, creating a reliable notice plan, protecting 9 class defendants from bona fide claims, and ensuring that class defendants’ due 10 process rights were not violated. Id. at 1126–1132. Despite these arguments, the 11 Ninth Circuit rejected an identification requirement, instead holding that a 12 proposed class definition only needs to be defined with objective criteria. Id. at 13 1133. The issue of whether a particular individual qualifies as a class member is a 14 separate inquiry to be conducted at a later time in the litigation. See Briseno, 844 15 F.3d at 1131–32; Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment 16 (explaining that the need “for separate determination of the damages suffered by 17 individuals within the class” will not defeat predominance). 18 19 Here, Ms. Wilcox has provided objective criteria to identify the class . ECF No. 61 at 10. These objective criteria are clear and definite. 20 // 21 // ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 23 1 Superiority 2 Ms. Wilcox argues that class action is the superior form of litigation because 3 the alternative is multiple small cases in which the litigation and attorney’s costs 4 would surpass the amount of likely damages. ECF No. 61 at 27. Defendants argue 5 that these cases are not low-value claims and that certifying a class would cause 6 more harm than help. ECF No. 85 at 32. 7 “The superiority inquiry under Rule 23(b)(3) requires determination of 8 whether the objectives of the particular class action procedure will be achieved in 9 the particular case.” Hanlon, 150 F.3d at 1023. “Where classwide litigation of 10 common issues will reduce litigation costs and promote greater efficiency, a class 11 action may be superior to other methods of litigation.” Valentino v. Carter- 12 Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). The Court also considers the 13 following non-exhaustive list of factors: 14 15 16 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 17 Fed. R. Civ. P. 23(b)(3); Local Joint Exec. Bd. of Culinary/Bartender Trust Fund 18 v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001). 19 Turning to the four enumerated factors of Rule 23(b)(3), the first factor favors 20 certification if “recovery on an individual basis would be dwarfed by the cost of 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 24 1 litigating on an individual basis.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 2 F.3d 1168, 1175 (9th Cir. 2010). Ms. Wilcox stipulated that the class would be 3 seeking the statutory minimum $2,500 per violation. Therefore, each class 4 member’s potential recovery would be “dwarfed” by the cost of litigating DPPA 5 claims against Defendants individually. Id; Fed. R. Civ. P. 23(b)(3)(A). Further, no 6 party has made the Court aware of any other actions against Defendants for DPPA 7 violations similar to the class claims here. Fed. R. Civ. P. 23(b)(3)(B). The Eastern 8 District of Washington is the appropriate forum for this class action because 9 Defendants limited their purchases of PTCRs to accidents that occurred in eastern 10 Washington. ECF No. 61-7 at 15–16; Fed. R. Civ. P. 23(b)(3)(C). Finally, there are 11 not immediately apparent difficulties in managing this proposed class action. Fed. 12 R. Civ. P. 23(b)(3)(D). Ms. Wilcox has made an initial showing that class action is 13 the superior form of litigation to resolve this dispute. 14 Defendants make two additional arguments as to why class action is not the 15 superior means of litigation. First, Defendants argue that certifying a class would 16 cause the harms that the DPPA was intended to prevent. ECF No. 85 at 33. 17 According to Defendants, telling the class members that Defendants accessed their 18 personal information will cause more harm than Defendants’ act of invading the 19 class members’ privacies, and that the Court should avoid this result. Id. Second, 20 Defendants argue that DPPA claims are not low-value claims, meaning that 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 25 1 individual litigation is superior and class certification would be ruinous to 2 Defendants. Id. at 34–35. 3 Defendants return to Truesdell to support their first argument against 4 superiority. In Truesdell, the defendant, a deputy sheriff in Florida, was accused of 5 violating the DPPA by using his access to the state’s driver and vehicle 6 identification database to satisfy his own personal curiosities about certain women 7 he read about in the news. Truesdell v. Thomas, No. 5:13-cv-552-Oc-10PRL, 2016 8 WL 7205490, *1 (M.D. Fla. Sept. 8, 2016). Given this unique fact pattern, the 9 district court determined that class action was not the superior means of litigation 10 because it would involve notifying several women in Florida that their privacy was 11 invaded, which could potentially cause emotional distress that they may not 12 otherwise experience without that knowledge. Id. at *4. According to Defendants, 13 Truesdell’s logic applies here, and the Court should avoid certifying a class to 14 prevent more emotional distress by alerting individuals that their personal 15 information was purchased and used for solicitation by Defendants. ECF No. 85 at 16 33. But Defendants do not address the footnote in the Truesdell opinion following 17 its statement that it wished to avoid causing more emotional harm in certifying a 18 class. The footnote reads: 19 20 The principal purpose of DPPA was to redress the practice in some states of selling databases . . . to mass marketers who would then communicate with the victims in an effort to sell them something . . . In cases like that it would clearly be in harmony with the purpose of DPPA—to say nothing of 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 26 1 common sense—to notify those whose privacy was, or will likely be, invaded for commercial purposes. 2 Truesdell, 2016 WL 7205490, at *4 n.6. For the reasons stated by the district court 3 in Truesdell, Defendants’ argument is not well-taken here. 4 Further, a plaintiff alleging a DPPA violation does not need to prove 5 emotional damages to succeed in his or her claim. The DPPA states that a “person 6 who knowingly obtains, discloses or uses personal information, from a motor 7 vehicle record, for a purpose not permitted under this chapter shall be liable to the 8 individual to whom the information permits.” 18 U.S.C. § 2724(a). While the 9 plaintiff may present proof of actual damages from the DPPA violation for 10 recovery, the DPPA sets a statutory floor of $2,500 in damages. 18 U.S.C. § 11 2724(b)(1). This shows that the main harm intended to be prevented by DPPA is 12 not the emotional harm that results from the discovery that one’s private 13 information has been obtained by an unknown third party; rather, it is the 14 acquisition itself that is considered the harm. See Reno v. Condon, 528 U.S. 141, 15 148 (2000) (holding that Congress may punish private actors for the acquisition of 16 personal information from motor vehicle records with the DPPA under the 17 Commerce Clause). 18 Defendants’ second argument against superiority is that the DPPA 19 incentivizes individual litigation because DPPA claims are not low value. ECF 20 No. 85 at 34. However, as Defendants already have admitted in their first 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 27 1 argument, many drivers do not even know that Defendants purchased their 2 personal information from the WSP. Id. at 33. Without knowledge that the alleged 3 violations occurred, many class members would not seek the compensation to 4 which they are entitled if Defendants did indeed violate the DPPA. Furthermore, 5 the cost of investigating and trying these DPPA cases individually likely exceeds 6 the $2,500 value that class members would receive from the litigation. Such an 7 outcome makes individual litigation unfavorable. See White v. E-Loan, Inc., No. C 8 05-02080 SI, 2006 WL 2411420, at *9 (N.D. Cal. Aug. 18, 2006). 9 Additionally, Defendants argue that a potential class of over 17,000 10 members would be ruinous to Defendants’ business. ECF No. 85 at 35. But the 11 Ninth Circuit has held that such a consideration is inappropriate in the class 12 certification analysis. Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 713 (9th 13 Cir. 2010). Additionally, Rule 23 is intended to be a procedural mechanism, 14 unconcerned with the merits of the action, to determine whether a party’s case may 15 proceed as a class action. See Shady Grove Orthopedic Assocs., P.A. v. Allstate 16 Ins. Co., 559 U.S. 393, 398 (2010) (“By its terms [Rule 23] creates a categorical 17 rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim 18 as a class action.”). And as the Court has already discussed, it is generally 19 inappropriate to discuss the merits at the class certification stage. Amgen Inc., 568 20 U.S. at 466–67. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 28 1 2 Ms. Wilcox has shown that a class action is the superior means of litigating this dispute against Defendants. 3 Appointing Class Counsel 4 While Defendants did not dispute the adequacy of proposed class counsel, 5 the Court “must consider” several factors before appointing class counsel. Fed. R. 6 Civ. P. 23(g)(1)(A); see also Fed. R. Civ. P. 23(c)(1)(B). These factors are the 7 work counsel has done in identifying or investigating the class claims; counsel’s 8 class action or complex litigation experience; class counsel’s knowledge of the 9 applicable law; and the resources counsel will commit to representing the class. Id. 10 When only one applicant seeks appointment as class counsel, or two applicants 11 seek to be named co-lead counsel, the district court may appoint the applicants as 12 class counsel only if they satisfy the requirements of Rule 23(g)(1) and 23(g)(4). 13 Fed. R. Civ. P. 23(g)(2). “Class counsel must fairly and adequately represent the 14 interests of the class.” Fed. R. Civ. P. 23(g)(4). 15 Ms. Wilcox asks that Thomas Jarrard and Block & Leviton be appointed as 16 co-lead class counsel. ECF No. 61 at 23. Mr. Jarrard investigated the DPPA 17 claims along with the Sweetser Law Firm against these Defendants and the 18 Washington State Defendants in the related Batiste action. ECF No. 61-16 at 2. 19 Both Thomas Jarrard and Block & Leviton have extensive class action experience, 20 especially in plaintiff class actions. Id.; ECF No. 61-12 at 2. Plaintiff’s counsel 21 also has shown knowledge of the applicable DPPA law and proven that they have ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 29 1 the resources necessary to represent this class. ECF No. 61-16; ECF No. 61-12. 2 The proposed co-lead counsel have shown that they will fairly and adequately 3 represent the best interests of the class as they demonstrated through their hard 4 work in successfully navigating two motions to dismiss, several discovery 5 disputes, and this motion for class certification. 6 7 Accordingly, the Court appoints Thomas Jarrard and Block & Leviton as colead class counsel. Fed. R. Civ. P. 23(g). 8 CONCLUSION 9 Ms. Wilcox has met the four requirements of Rule 23(a) and the additional 10 requirements to certify a damages class under rule 23(b)(3). Therefore, the Court 11 grants Ms. Wilcox’s motion for class certification, and certifies the following class: 12 All drivers identified in Police Traffic Collision Reports whose Personal Information, as defined by the DPPA, was derived from a Department of Licensing record (e.g. license, registration or database) and the Report was obtained or used by the Swapp Law Firm (d/b/a Craig Swapp & Associates) or Mr. Swapp from the Washington State Patrol between September 1, 2013 and June 23, 2017. 13 14 15 Excluded from the Class are (a) current and former clients of Defendants; (b) individuals identified on the same PTCRs as Defendants’ clients; (c) individuals who provided written consent to Defendants for the disclosure of their Personal Information (as defined by the DPPA) prior to Defendants obtaining their personal information; (d) employees (and attorneys) of Defendants and members of their immediate families; and (e) the presiding judge and anyone working in the presiding judge’s chambers and the members of their families. 4 16 17 18 19 20 4 21 This class definition differs slightly from the proposed class in Ms. Wilcox’s motion. “Where appropriate, the district court may redefine the class.” Armstrong ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 30 1 The Court appoints Ms. Wilcox as class representative. The Court appoints 2 Thomas Jarrard and Block & Leviton as co-lead class counsel. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Class Certification, ECF No. 61, is 5 GRANTED. 6 2. Plaintiff’s proposed class, ECF No. 61 at 10, is certified under Federal 7 Rule of Civil Procedure 23(b)(3). 8 3. Thomas Jarrard and Block & Leviton are appointed as co-lead class 9 counsel. 10 4. Pursuant to this Court’s order staying discovery deadlines, ECF No. 11 102, the parties shall file a Joint Status Report within 14 days of the entry of this 12 order. This Joint Status Report shall include a plan for class notice pursuant to 13 Rule 23(c)(2)(B). 14 IT IS SO ORDERED. The District Court Clerk is directed to enter this 15 Order and provide copies to counsel. 16 DATED January 25, 2019. 17 18 19 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 20 21 v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005). ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION ~ 31
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