Samson v. UnitedHealthCare Services Inc, No. 2:2019cv00175 - Document 266 (W.D. Wash. 2023)

Court Description: ORDER granting Plaintiff's 172 Renewed Motion for Class Certification. The Court CERTIFIES two classes as described herein. The Court also appoints Beth Terrell, Jennifer Rust Murray, Adrienne McEntee or Terrell Marshall Group PLLC, David Sear les, James Francis, John Soumilas, Jordan Sartell of Francis Mailman Soumilas PC, and Jonathon Shub of Shub & Johns LLC, as class counsel. The parties are directed to meet and confer regarding a plan for sending notice to the class and a form of notice. The parties shall meet and confer, and shall file the proposed notice with the Court no later than 10/30/2023. The Court also DENIES United's request to strike. Signed by Judge Marsha J. Pechman. (SB)

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Samson v. UnitedHealthCare Services Inc Doc. 266 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 1 of 31 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 FRANTZ SAMSON, Plaintiff, 11 12 13 CASE NO. 2:19-cv-00175 ORDER GRANTING CLASS CERTIFCATION v. UNITED HEALTHCARE SERVICES INC., 14 Defendant. 15 16 17 This matter comes before the Court on Plaintiff’s Renewed Motion for Class 18 Certification. (“Mot.” (Dkt. No. 172).) Having reviewed the Motion, Defendant’s Opposition 19 (“Opp.” (Dkt. No. 204), the Reply (Dkt. No. 226), the Surreply (Dkt. No. 234), and all other 20 supporting documents and materials, and having held oral argument on October 5, 2023, the 21 Court GRANTS Plaintiff’s Motion and CERTIFIES two classes. 22 23 24 ORDER GRANTING CLASS CERTIFCATION - 1 Dockets.Justia.com Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 2 of 31 1 BACKGROUND The TCPA prohibits “any person . . . to make any call (other than a call made for 2 3 emergency purposes or made with the prior express consent of the called party) using any 4 automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone 5 number assigned to a . . . cellular telephone service . . .” 47 U.S.C. § 227(b). Plaintiff Frantz 6 Samson alleges that Defendant, United HealthCare Services (“United’) violated the TCPA by 7 placing calls using an artificial prerecorded voice to call cellular telephone numbers without the 8 prior express consent of the party being called. (Mot. at 4.) Samson filed suit in 2019 and now seeks to have two classes of similarly-situated 9 10 individuals certified. The Court reviews the salient factual allegations and then addresses the 11 allegations specific to class certification. 12 A. Factual Allegations 13 Samson began receiving automated calls from United in July 2018 after receiving a new 14 cell phone number. (Mot. at 2; Declaration of Jennifer Rust Murray, Exhibit 2 (Dkt. No. 173-2).) 15 Samson told United it had the wrong number when he received the calls. (Mot. at 2; Murray 16 Decl. Ex. 7 (Dkt. No. 173-7).) He asked United to stop calling and to take him off the calling list, 17 but the calls continued. (Id.) 18 Samson alleges that he received calls from three of United’s internal teams: the 19 Community & State National Retention team, the Medicare and Retirement Non-Licensed 20 Retention team, and the Medicare and Retirement Collections team. (Mot. at 3.) The different 21 teams are relevant because of the different automatic dialing systems they use, their impact on 22 Samson’s TCPA claims, and for the purposes of limiting the classes. United utilizes automatic 23 dialing systems, two of which are the LiveVox IVR system and the Avaya Dialer, to call and 24 ORDER GRANTING CLASS CERTIFCATION - 2 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 3 of 31 1 leave prerecorded messages to recipients. (Mot. at 3-4; Murray Decl. Ex. 5 (Jeanette Dep. at 2 41:13-14, 42:22-43:9); Ex. 4 (Frazier Dep. at 109:18-111:22).) United’s Collection team uses the 3 LiveVox IVR system to play prerecorded messages to recipients, whereas United’s other teams 4 use the Avaya Dialer to automatically dial consumers who are loaded onto a list of members to 5 be called for specific “campaigns.” (Id.) Following these calls, United employees can enter a 6 disposition code, which documents the outcome of that call. (Mot. at 3, 5; Murray Decl. Ex. 14 7 (Expert Report of Anya Verkhovskaya at ¶¶ 34, 36) (Dkt. No. 173-14); Ex. 17 at UHC0000152 8 (Dkt. No. 173-17). ) “Wrong number” and “do not call” are two such codes. (Mot. at 5; Murray 9 Decl. Ex. 8 (Dkt. No. 173-8).) 10 B. Allegations Relevant to Class Certification 11 This is Samson’s second motion for class certification, filed after the Court lifted a stay 12 that was put in place pending the outcome of three similar cases filed in the Eastern District of 13 California. (See Dkt. No. 93.) Samson moves to certify two classes that are similar, but not 14 identical to, his initial classes: 15 16 17 Wrong Number Class: All persons residing within the United States who, between January 1, 2015, and the date of class certification, received a non-emergency telephone call(s) from one of the UnitedHealthcare teams that called Plaintiff Samson, to a cellular phone through the use of an artificial or prerecorded voice, and who, according to Defendant’s records, was not a UnitedHealthcare member at the time of the call. 18 19 20 21 Do-Not-Call Class: All persons residing within the United States who, between January 1, 2015 and the date of class certification, received a non-emergency telephone call(s) from one of the UnitedHealthcare teams that called Plaintiff Samson, to a cellular phone through the use of an artificial or prerecorded voice, and whose telephone number, according to Defendant’s records, was flagged or documented as “do not call,” “final do not contact” or otherwise recorded as a number not to be called. 22 (Mot. at 10.) 23 24 ORDER GRANTING CLASS CERTIFCATION - 3 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 4 of 31 1 Samson argues both classes are suited for certification because common proof can 2 be used to demonstrate that members of each class received calls from United in violation 3 of the TCPA. And given that consent remains central to TCPA claims, Samson asserts 4 that common evidence from United’s records can resolve any disputes as to each class 5 member’s consent to be called. Specifically, United’s call logs show a lack of consent 6 when there is either a “wrong number” or “do not call” disposition. (Mot. at 16.) United argues against certification, claiming that individualized issues would 7 8 predominate over common issues. (Opp. at 1.) United puts forth three arguments against 9 certification. First, United contends that Samson’s reliance on “wrong number” and “do 10 not call” disposition codes do not suffice to show lack of consent. Rather, United claims 11 that a call-by-call analysis would have to occur in order to determine whether it had 12 consent to call any given class member. (Id. at 1-2.) Second, United argues that the 13 TCPA has several healthcare exemptions, which would need to be considered on a call- 14 by-call basis. (Id. at 2.) And finally, United argues that the Court would have to 15 determine whether state law preempts the TCPA, and in doing so, would have to do a 16 preemption analysis for all 50 states and apply them to the relevant calls. (Id.) 17 ANALYSIS 18 Before the Court examines the merits of Samson’s Motion, the Court first considers 19 United’s objections to the class definitions and its contention that Samson lacks standing. 20 C. 21 Class Definitions United makes two arguments regarding the scope of the class definitions. First, United 22 claims that Samson expanded his class definitions and asks the Court to narrow them. (“Opp.” at 23 19-20.) Samson’s prior definition limited the classes to those who received calls from United via 24 ORDER GRANTING CLASS CERTIFCATION - 4 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 5 of 31 1 its Avaya dialer or LiveVox IVR dialing system. (Id. at 19.) As proposed, the class definitions 2 now include people who received calls from the same teams that called Samson regardless of the 3 dialer used. United also argues the definitions also expand the class period from 2019 to the date 4 of this Court’s ruling on certification. United argues that expanding the definitions and class 5 period means additional calls, campaigns, and dialers could be at issue in the case that were not 6 subject to prior discovery. (Id. at 5.) The Court agrees to modify the classes to include the two specific automatic dialers at 7 8 issue. This is consistent with the Court’s discretion to modify the classes. See Rosas v. 9 Sarbanand Farms, LLC, 329 F.R.D. 671, 693 (W.D. Wash. 2018) (citing Armstrong v. Davis, 10 275 F.3d 849, 872 (9th Cir. 2001) (“The Court has discretion to modify class definitions where 11 appropriate.”). By adding the names of the specific automatic dialers – the Avaya dialer and the 12 LiveVox IVR dialing systems - the class definitions more narrowly target those individuals who 13 are similarly-situated to Samson, who received calls from both automatic dialers. Samson does 14 not contest this narrowing of the classes and, indeed, his briefing refers only to the Avaya Dialer 15 and the LiveVox IVR dialing systems. The Court therefore revises the class definitions to name 16 those two specific systems given that they are the only two relevant automatic dialers. The Court 17 also revises the class definitions to specify which three teams called Samson for the purposes of 18 clarity. 19 As to the expanded class period, the Court finds that given extensive discovery has 20 already occurred in this case it would be unfair to United to expand the class period and require 21 additional discovery. The original class period proposed was January 9, 2015 to January 9, 2019 22 – a four year period stretching to the day the action was filed on January 9, 2019. (Amended 23 Complaint at 6 (Dkt. No. 82); (Complaint (Dkt. No. 1-2).) When Samson filed the current 24 ORDER GRANTING CLASS CERTIFCATION - 5 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 6 of 31 1 Motion to Certify, he requested the Court certify classes spanning from January 1, 2015 to the 2 date of this Court’s certification. (Mot. at 10.) However, in support of his oral argument, Samson 3 now requests the Court change the class period from January 1, 2015 to October 29, 2019 for the 4 Wrong Number class, and from January 1, 2015 to October 20, 2019 for the Do Not Call class. 5 (Pl. Demonstrative Slides for Oral Arguments at 19-20 (Dkt. No. 264).) The Court does not 6 know if the different ending dates were made in error, but absent an explanation accepts these 7 are the dates Samson requests. To avoid the need for additional discovery and avoid prejudice to 8 United, the Court agrees to narrow the class period from January 9, 2015 to January 9, 2019. 9 Second, United argues that Samson proposes impermissible “fail-safe” classes. (Opp. at 10 12.) United is incorrect. Fail-safe classes are commonly defined “to include only those 11 individuals who were injured by the allegedly unlawful conduct.” Olean Wholesale Grocery 12 Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 n.14 (9th Cir.), cert. denied sub nom. 13 Starkist Co. v. Olean Wholesale Grocery Coop., Inc., 143 S. Ct. 424 (2022). “Such a class 14 definition is improper because a class member either wins or, by virtue of losing, is defined out 15 of the class and is therefore not bound by the judgment.” Id. (internal quotation and citation 16 omitted). 17 United’s argument here fails because the class definitions are defined using objective 18 criteria that do not simply mirror the TCPA claim elements. Though Samson’s class definitions 19 loosely track the elements of a TCPA claim, they are not “fail-safe.” Both classes are defined 20 using objective criteria, for instance by “wrong number” and “do not call” disposition codes, 21 which do not necessarily identify those injured by the unlawful conduct because the question of 22 consent must still be litigated and proven at trial. Because Samson will have to prove more facts 23 24 ORDER GRANTING CLASS CERTIFCATION - 6 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 7 of 31 1 to establish liability than are referenced in his class definitions, the Court finds he has not 2 proposed fail-safe classes. 3 D. 4 5 Standing United argues that Samson does not have standing to represent either class. United’s argument lacks merit because Samson alleges Article III injuries consistent with both classes. 6 Article III limits federal judicial power to “Cases” and “Controversies,” U.S. Const. art. 7 III, § 2, and standing to sue “limits the category of litigants empowered to maintain a lawsuit in 8 federal court to seek redress for a legal wrong,” Spokeo, Inc., v. Robins, 578 U.S. 330, 337 9 (2016). To satisfy Article III standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) 10 that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 11 redressed by a favorable judicial decision.” Spokeo, 578 U.S. at 337. A plaintiff establishes 12 injury in fact if he or she suffered “an invasion of a legally protected interest that is concrete and 13 particularized and actual or imminent, not conjectural or hypothetical.” Id. at 339 (internal 14 quotation and citation omitted). 15 United argues that under the new expanded class definitions, Samson fails to establish 16 standing under both proposed classes because he never received a prerecorded call, and does not 17 claim he ever received a non-emergency pre-recorded call. (Opp. at 21.) This is incorrect. A 18 United employee testified that United called Samson in November 2018 using the IVR system. 19 (Murray Decl. Exhibit 5 (Jeanette Dep. at 83:10-84:1).) Samson also provides evidence from 20 United’s records that this November call is labeled as pre-recorded, for educational purposes, 21 and made after United entered “do not call” and “wrong number” dispositions for Samson. 22 (Murray Decl., Exhibits 8, 16 (Dkt. No. 173-16).) 23 24 ORDER GRANTING CLASS CERTIFCATION - 7 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 8 of 31 1 At the hearing on Samson’s Motion, United argued that the November call does not count 2 because it falls into the “emergency” exceptions category. (Def. Demonstrative Slides for Oral 3 Arguments at 6-7 (Dkt. No. 263).) United claims the November call was a “LISLoss” call, 4 designed to inform members that their insurance coverage was ending. (Id.) United cites to 5 Dennis v. Amerigroup Washington, Inc., No. 3:19-CV-05165-RBL, 2020 WL 618472 (W.D. 6 Wash. Feb. 10, 2020), for the premise that other Courts have previously found LISLoss calls 7 exempt. But the emergency exceptions issue in Dennis was decided at summary judgment, and 8 was determined as a matter of liability, not standing. The court there also noted that Amerigroup 9 was not at fault for that call regardless because it was the first call placed to the plaintiff after the 10 number was reassigned. Dennis, 2020 WL 618472 at * 7. The court did not discuss if 11 Amerigroup would have been liable had it had actual knowledge that the number belonging to its 12 member had been reassigned. As discussed in more detail below, the Federal Communications 13 Commission (“FCC”) has previously stated that callers may still be liable under the TCPA if 14 they call someone without consent even if it is for emergency purposes. See In Re Rules & 15 Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 2023 Declaratory Ruling at 7. 16 Because the applicability of the emergency exception for the November call speaks more to 17 liability than standing, and because Samson has demonstrated he was called by an artificial, 18 prerecorded voice and after United entered “wrong number” and “do not call” notations for his 19 number, the Court finds Samson has established standing for both classes. 20 E. 21 Class Certification Standard Courts must undertake a “rigorous analysis” of all the Rule 23 factors to determine 22 whether to certify a class. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011). The 23 plaintiff must first meet all four requirements in Rule 23(a): numerosity, commonality, typicality, 24 ORDER GRANTING CLASS CERTIFCATION - 8 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 9 of 31 1 and adequacy of representation. See Leyva v. Medline Indus., 716 F.3d 510, 512 (9th Cir. 2013); 2 Fed. R. Civ. P. 23(a). 3 The plaintiff must also satisfy one of the Rule 23(b) factors. Here, Samson seeks 4 certification under the “predominance” standard of Rule 23(b)(3). To obtain certification of a 5 class action for money damages under Rule 23(b)(3), a putative class must establish that “the 6 questions of law or fact common to class members predominate over any questions affecting 7 only individual members . . .” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 460 8 (2013). Samson must demonstrate predominance and superiority under Rule 23(b)(3) by 9 preponderance of the evidence. Olean, 31 F.4th at 665 (concluding that “plaintiffs must prove the 10 facts necessary to carry the burden of establishing the prerequisites of Rule 23 are satisfied by a 11 preponderance of the evidence.”) In making this determination, “the court must make a rigorous 12 assessment of the available evidence and the method or methods by which plaintiffs propose to 13 use the class-wide evidence to prove the common question in one stroke.” Id. at 666 (internal 14 quotation and citation omitted). 15 United argues Samson fails to meet the typicality, adequacy, and predominance 16 requirements of Rule 23 in its opposition to class certification. The Court focuses primarily on 17 these criteria. 18 1. 19 Numerosity exists when “the class is so numerous that joinder of all members is 20 impractical.” Fed. R. Civ. P. 23(a)(1). “The numerosity requirement requires examination of the 21 specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw. v. 22 Equal Emp. Opportunity Comm’n, 446 U.S. 318, 330 (1980). There is no challenge to 23 numerosity, and United’s records show that there are over 45,000 members in each class. (Mot. Numerosity 24 ORDER GRANTING CLASS CERTIFCATION - 9 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 10 of 31 1 at 10; Declaration of Jodi Nuss at ¶¶ 8-19) (Dkt. No. 176).) The Court finds the numerosity 2 requirement of Rule 23(a)(1) is met. See A. B. v. Hawaii State Dep't of Educ., 30 F.4th 828, 3 836–37 (9th Cir. 2022) (finding a prospective class of 300 members satisfied numerosity). 4 2. 5 Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” A Commonality 6 proposed class satisfies the commonality requirement if there is at least one question of fact or 7 law common to the class. Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to 8 demonstrate that the class members have suffered the same injury.” Wal-Mart, 564 U.S. at 349– 9 50 (citation and quotations omitted). To satisfy commonality, the claims must depend on a 10 common contention “that is capable of class wide resolution.” Id. at 350. “What matters to class 11 certification . . . is not the raising of common ‘questions’—even in droves—but rather, the 12 capacity of a class-wide proceeding to generate common answers apt to drive the resolution of 13 the litigation.” Id. (citation and quotation omitted). 14 Commonality is satisfied because there are significant questions of fact or law common 15 to class members – a point United does not challenge. Samson argues the common questions are 16 (1) whether United used a prerecorded voice to make calls to class members; and (2) whether 17 United is liable for calls made to wrong or reassigned numbers, and for calls to individuals who 18 previously told United not to call. (Mot. at 11-12.) These questions are applicable to the classes 19 Samson seeks to certify. The Court finds commonality is satisfied. 20 3. 21 United makes two arguments challenging Samson’s typicality, both of which are 22 Typicality attenuated and lack merit. 23 24 ORDER GRANTING CLASS CERTIFCATION - 10 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 11 of 31 1 To demonstrate typicality, a plaintiff must show that the named party’s claims are typical 2 of the class. Fed. R. Civ. P. 23(a)(3). The Supreme Court has recognized the “commonality and 3 typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 4 147, 157 n.13 (1982). The Ninth Circuit has described typicality as a “permissive standard[]”. 5 Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (internal citation and quotation omitted). 6 “Typicality refers to the nature of the claim or defense of the class representative, and not to the 7 specific facts from which it arose or the relief sought.” Parsons v. Ryan, 754 F.3d 657, 685 (9th 8 Cir. 2014). “[R]epresentative claims are ‘typical’ if they are reasonably coextensive with those of 9 absent class members; they need not be substantially identical.” Staton, 327 F.3d at 957 (internal 10 11 quotation and citation omitted). The Court agrees with Samson that his claims are typical of the proposed classes. 12 Samson’s claims arise from United’s same course of conduct and are based on the same legal 13 theories that are typical of both classes. For the Wrong Number class, Samson and unnamed 14 class members are not members of United and received calls from United after alerting it that it 15 had the wrong number. Similarly, for the Do Not Call class, Samson and unnamed class 16 members received calls from United after United entered a “do not call” disposition code. For 17 both classes, Samson has the same or similar alleged injury as other class members based on 18 United’s same conduct. 19 United argues that Samson is atypical of the Do Not Call class because he is not a United 20 member and in United’s view, the class contains only United members. (Opp. at 22.) But the Do 21 Not Call class is not limited to United members. Membership in the Do Not Call class turns on 22 whether United entered a “do not call” disposition code, and whether that is sufficient to show 23 lack of consent, not whether the class members are also United members. Because Samson has 24 ORDER GRANTING CLASS CERTIFCATION - 11 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 12 of 31 1 demonstrated that he received a call after United entered a “do not call” disposition code for his 2 number (Murray Decl., Exs. 8, 16), the Court finds Samson’s claim typical for the Do Not Call 3 class. 4 United also asserts that Samson’s interests fundamentally differ from United members 5 because he seeks to recover damages even if that might cause other United members’ insurance 6 premiums to go up if United is forced to pay a judgment. (Opp. 22; (Declaration of Maxwell 7 Pritt, Exhibit 19 (Deposition of Frantz Samson 58:16-20) (Dkt. No. 214-19).) This argument is 8 wholly speculative and irrelevant to the Court’s inquiry. See Parsons 754 F.3d at 685 (noting that 9 the relief sought is not relevant to typicality). The Court finds this argument fails for two reasons. 10 First, United fails to put forth any evidence to suggest that paying damages in this case will 11 affect its ability to provide services to members or that paying damages will result in members 12 paying more in insurance. Second, United’s argument simply assumes what class members might 13 believe without providing any support for this assumption. Because United has failed to show 14 that Samson’s interests fundamentally differ from other class members, and because relief sought 15 is not relevant to typicality, the Court finds it poses no impediment to the Court’s finding that 16 Samson’s claims are typical of both classes. 17 4. 18 United fails to convince the Court that any of its attacks to Samson’s adequacy as a class 19 20 Adequacy representative has merit. Both Samson and his counsel satisfy the adequacy requirement. The adequacy requirement is satisfied if the named plaintiff will fairly and adequately 21 protect the interests of the class. Fed. R. Civ. P. 23(a)(4). In determining this Rule 23 22 requirement, the Court asks: “(1) [d]o the representative plaintiffs and their counsel have any 23 conflicts of interest with other class members, and (2) will the representative plaintiffs and their 24 ORDER GRANTING CLASS CERTIFCATION - 12 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 13 of 31 1 counsel prosecute the action vigorously on behalf of the class?” Staton, 327 F.3d at 957 (internal 2 citation omitted). The adequacy requirement “is aimed at protecting the due process rights of 3 absent members who will be bound by a class action judgment.” Farrell v. Bank of Am., N.A., 4 327 F.R.D. 422, 428 (S.D. Cal. 2018) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th 5 Cir. 1988). 6 The Court finds Samson is an adequate class representative. He has worked closely with 7 counsel to develop the class claims. (Mot. at 13; Murray Dec. ¶ 9.) He has responded to 8 discovery and been deposed. (Id.) He has also participated in mediation, including by attending a 9 mediation session in person. (Id.) 10 United argues that Samson is an inadequate representative because he has a criminal 11 history and provided “false testimony.” (Opp. at 23.) This misleading argument fails to persuade 12 the Court against finding Samson adequate. 13 “Most courts have rejected the contention that a proposed representative is inadequate 14 because of prior unrelated unsavory, unethical, or even illegal conduct.” 1 NEWBERG ON 15 CLASS ACTIONS § 3.68 (6th ed.); In re Computer Memories Sec. Litig., 111 F.R.D. 675, 682 16 (N.D. Cal. 1986) (noting that within the Ninth Circuit, “[c]haracter attacks . . . not combined 17 with a showing of a conflict of interest have generally not been sympathetically received” and 18 that the existence of a conflict of interest is the most important consideration). “Only when 19 attacks on the credibility of the representative party are so sharp as to jeopardize the interests of 20 absent class members should such attacks render a putative class representative inadequate.” 21 Harris v. Vector Mktg. Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (internal quotation 22 and citation omitted). While a putative representative’s credibility may be a relevant 23 consideration, it is only disqualifying when it is “on issues directly relevant to the litigation . . ” 24 ORDER GRANTING CLASS CERTIFCATION - 13 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 14 of 31 1 In re Arris Cable Modem Consumer Litig., 327 F.R.D. 334 (N.D. Cal. 2018) (citing Harris, 753 2 F. Supp. 2d at 1015). 3 Relying entirely on precedent from outside the Ninth Circuit, United argues that Samson 4 “has engaged in a pattern of abuse of the judicial system” and is therefore not a person who 5 would fairly and adequately represent the interest of the classes. (Opp. at 23.) In support of this 6 argument, United points out that in 2010, Samson “stole” from a bowling alley by allegedly 7 refusing to rent shoes. (Pritt Decl. Ex. 19 (Samson Dep. at 14:8-23).) Samson pled guilty to a 8 charge of third degree theft and received a deferred sentence. (Pritt Decl. Ex. 20 at 5 (Dkt. No. 9 214-20).) Samson failed to pay the fines and it appears the court was unable to locate him to get 10 in touch about the fines. (Id. at 3.) In 2011, the court revoked Samson’s deferred sentence, closed 11 the case and found Samson guilty. (Id. at 2.) Samson explained that he was unable to pay the 12 restitution due to being unemployed. (See Pritt Decl. Ex. 19 (Samson Dep. at 19:20-20:22).) He 13 was also unaware that a payment plan was available, and did not know that he needed to alert the 14 court when he moved. (Id.) He did not attempt to hide this information. (See, Pritt Decl. Ex. 19 15 (Samson Dep.); Supplemental Declaration of Jennifer Rust Murray, Exhibit 39 at 6 (Dkt. No. 16 227-7).) This prior conduct does not convince the Court that Samson cannot adequately represent 17 the classes. The transgression occurred over a decade ago without further wrong-doing that 18 would evince a pattern of criminal behavior. The misdemeanor theft is entirely unrelated to the 19 TCPA violations and Samson’s inability to pay restitution is equally unrelated. United’s attempt 20 to escalate these issues into ones of criminal significance fail and the Court is unconvinced it 21 bears on Samson’s adequacy as a class representative. 22 23 The Court is equally unconvinced by United’s argument that Samson is inadequate because he “falsely testified” during his deposition about being sued for failing to pay rent. The 24 ORDER GRANTING CLASS CERTIFCATION - 14 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 15 of 31 1 record contradicts United’s argument. Samson was also one of several tenants who was sued by 2 their landlord for failing to pay rent. (Pritt Decl. Ex. 21 (Dkt. No. 214-21).) When asked if he had 3 ever had a civil complaint filed against him, Samson responded “not to my knowledge.” (Pritt 4 Decl. Ex. 19 (Samson Dep. at 15:9-11).) When shown the complaint, Samson’s memory was 5 refreshed, and he answered United’s questions about the complaint. (Pritt Decl. Ex. 19 (Samson 6 Dep. at 21:21-23; 22:24-23:12).) There is nothing to suggest Samson testified falsely that he did 7 not recall the complaint filed against him or that he was attempting to conceal this information. 8 Samson’s answer reflects both the passage of time and his limited understanding of what a civil 9 complaint is. 10 Lastly, the Court finds Samson’s counsel are adequate to represent the classes – a point 11 United does not contest. In determining adequacy of class counsel, the Court must also assess the 12 following requirements of Rule 23(g): 13 (i) the work counsel has done in identifying or investigating potential claims in the action; 14 15 (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; 16 (iii) counsel’s knowledge of the applicable law; and 17 (iv) the resources that counsel will commit to representing the class. 18 19 20 21 22 23 24 Fed. R. Civ. P. 23(g)(1)(A). The Court may also consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). And class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4). Samson is represented by three law firms – Terrell Marshall Law Group PLLC, Francis Mailman Soumilas PC, and Shub & Johns LLC. A representative from each firm provides details regarding their experience, knowledge of the applicable law, and a willingness to provide the ORDER GRANTING CLASS CERTIFCATION - 15 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 16 of 31 1 resources necessary to represent the class. (Murray Decl.; Declaration of James Francis (Dkt. No. 2 174); Declaration of Jonathan Shub (Dkt. No. 175).) The attorneys have also been with this case 3 since its inception, conducted discovery, and began the litigation process after the stay was lifted. 4 (Murray Decl., Francis Decl., Shub Decl.) For these reasons, the Court finds Samson and his 5 counsel meet the adequacy requirement. 6 5. 7 Rule 23(b)(3) requires not just that some common questions exist, but that those common Rule 23(b)(3) – Predominance 8 questions predominate over individual ones. The “predominance inquiry tests whether proposed 9 classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, 10 Inc. v. Windsor, 521 U.S. 591, 623 (1997). “This calls upon courts to give careful scrutiny to the 11 relation between common and individual questions in a case.” Tyson Foods, Inc. v. Bouaphakeo, 12 577 U.S. 442, 453 (2016). “An individual question is one where members of a proposed class 13 will need to present evidence that varies from member to member, while a common question is 14 one where the same evidence will suffice for each member to make a prima facie showing [or] 15 the issue is susceptible to generalized, class-wide proof.” Id. (citation and quotations omitted). 16 Defenses that must be litigated on an individual basis may defeat class certification. Wal-Mart, 17 564 U.S. at 367. But “[w]hen one or more of the central issues in the action are common to the 18 class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) 19 even though other important matters will have to be tried separately, such as . . . some 20 affirmative defenses peculiar to some individual class members.” Tyson Foods, 577 U.S. at 453. 21 The party seeking class certification has the burden of establishing predominance. True Health 22 Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018). 23 24 ORDER GRANTING CLASS CERTIFCATION - 16 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 17 of 31 1 The main dispute about predominance is the issue of consent. Prior express consent is an 2 affirmative defense in TCPA claims. True Health, 896 F.3d at 931. The ability to show consent, or 3 the revocation thereof, on a class-wide basis is crucial to the predominance inquiry. Because the 4 analysis is different for the proposed classes, the Court discusses them separately. The Court also 5 addresses United’s challenges to predominance concerning call exceptions and the McCarran- 6 Ferguson Act. 7 a. 8 United argues individualized consent issues will predominate for the Wrong Number 9 10 11 Wrong Number Class class because Samson cannot rely on United’s records to show lack of consent. The Court disagrees. Demonstrating prior “express consent” is an affirmative defense for which the defendant 12 bears the burden. True Health, 896 F.3d at 931. Typically, consent can be shown through an 13 enrollment form, a contract or some evidence showing an agreement to be contacted. See id. at 14 932-33; Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1045 (9th Cir. 2017). Since 15 United bears the burden of demonstrating consent, the court assesses predominance “by 16 analyzing the consent defenses United has actually advanced and for which it has presented 17 evidence.” True Health, 896 F.3d at 931. 18 United makes two arguments that its consent defenses will raise individualized issues that 19 would defeat predominance. First, United argues that there is no way to distinguish United 20 members from non-members except on a call-by-call basis. (Opp. at. 9.) But Samson’s expert, 21 Anya Verkhovskaya, proposes a methodology for dealing with this issue. Verkhovskaya states 22 she can determine who had a telephone number at a given time by utilizing data processors such 23 as LexisNexis, TransUnion, Tel-Lingua, MicroBilt, and Experian. (Rebuttal Expert Report of 24 ORDER GRANTING CLASS CERTIFCATION - 17 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 18 of 31 1 Anya Verkhovskaya to Expert Report of Sonya Kwon at 23 (Dkt. No. 173-26).) She will use this 2 reverse lookup service to determine if a name and associated physical address exists for each cell 3 phone number appearing in United’s records at the time the calls were made. (Id. at 23-26.) 4 Verkhovskaya has tested this methodology and found that the data is reliable, with an accuracy 5 range of 86% to 97%. (Id. at 23.) And to ensure the data is accurate, following the reverse lookup 6 process, Verkhovskaya will coordinate a telephone carrier subpoena process to obtain the 7 user/subscriber’s name and address associated with the telephone numbers in question during the 8 relevant time period. (Id. at 33.) The information obtained via the subpoena process would be 9 cross-checked against the information found from the reverse lookup to confirm potential class 10 members’ identities and remove all United members’ telephone numbers. Given the layers of 11 cross-checking for this process, the Court finds Verkhovskaya’s proposed methodology provides 12 a class-wide means of distinguishing between members and non-members and avoiding the 13 consent issue United raises. 14 United argues that Verkhovskaya’s methodology is unreliable, which would in turn lead 15 to a potential ascertainability issue. (Opp. at 24.) United’s most persuasive argument is that 16 Verkhovskaya’s calculation of the data processor’s accuracy range is incorrect. (Opp. at 25.) 17 According to United’s expert, Sonya Kwon, the data processors utilized by Verkhovskaya have 18 error rates from 20% to 70%, well above Verkhovskaya’s 14% estimated error rate. (Declaration 19 of Maxwell Pritt, Exhibit 28 at 16 (Rebuttal Expert Report of Sonya Kwon) (Dkt. No. 214-28).) 20 Kwon included a table in her analysis to demonstrate that when using the data processors to look 21 up a number and the owner of that number during a specified time period, she found 22 inconsistencies among the data. (Id. at 17, Table 10.) This table included specific examples 23 where the data processors were inconsistent for certain proposed class members. This means the 24 ORDER GRANTING CLASS CERTIFCATION - 18 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 19 of 31 1 data processors could give conflicting information about who owns a certain number at a given 2 time, making it difficult to ascertain class members. 3 There are three flaws in Kwon’s criticism. First, Kwon does not address the validity of 4 Verkhovskaya’s subpoena process as a way to cross-check the data processor results. The 5 information obtained via subpoena adds an additional means to confirm the results and account 6 for any discrepancies between the data processors. Second, Verkhovskaya’s report states that she 7 would remove any records where there is a conflict between the data processor and the subpoena 8 information, thus eliminating any unconfirmed numbers. (Verkhovskaya Rebuttal Report at 35- 9 36.) Third, “[c]ourts have repeatedly recognized the adequacy of reverse lookup methodologies 10 to satisfy Rule 23(b)(3)’s predominance requirement” in TCPA cases. Williams v. PillPack LLC, 11 343 F.R.D. 201, 211 (W.D. Wash. 2022) (citing cases). Given Verkhovskaya’s ability to cross- 12 check results, and the general acceptance of this methodology, the Court finds Verkhovskaya’s 13 methodology sufficient at this stage in the litigation. 14 United’s second argument is that “wrong number” dispositions have multiple meanings, 15 and consent defenses would require call-by-call inquiries. (Opp. at 10.) United identifies various 16 deposition transcripts and declarations from United employees to support its argument that a 17 wrong number disposition code does not show lack of consent. (Id. at 10). For example, United 18 contends that often times members will tell United callers they have reached a wrong number as 19 a way to avoid dealing with a delinquent account, which in turn gets coded as “wrong number.” 20 (Id.) But this argument only applies to members, who are not part of the class and should be 21 screened out through Verkhovskaya’s methodology. 22 23 United also claims that many members are Dual Special Needs Plan (“DSNP”) Members, which means they are dually eligible for both Medicare and Medicaid. (Declaration of Kevin 24 ORDER GRANTING CLASS CERTIFCATION - 19 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 20 of 31 1 McGavick at ¶¶ 2-3 (Dkt. No. 205).) United states that DSNP members are frequently homeless, 2 disabled and lack stable housing and therefore will often give the numbers of relatives, friends 3 and neighbors who consent to receive calls on their behalf, and that sometimes those individuals 4 mistakenly identify the calls as misdirected. (Opp. at 10-11; McGavick Decl. ¶¶ 4, 8; Declaration 5 of Jennie Carter ¶ 11, 24-25 (Dkt. No. 206); Declaration of Miranda Schutt ¶ 4 (Dkt. No. 208).) 6 But this argument lacks sufficient evidence to defeat predominance. Kevin McGavick, United’s 7 Vice President and 30(b)(6) designee, simply testified that “[s]ometimes non-members consent 8 to receive calls on behalf of a . . . member.” (McGavick Decl. at ¶ 14) He provides no 9 information as to how often that happens or how frequently those calls are misidentified. Jennie 10 Carter, who is employed as a business manager for United’s Medicare & Retirement Collections 11 team, similarly informs that Court that 51% of the DSNP members have responsible parties that 12 have the authority to make medical decisions for them, but then states that more broadly many 13 members use the number of a friend, neighbor, caretaker or relative they live with or near as the 14 member’s contact number with that person’s consent. (Carter Decl. at ¶¶ 23-24.) Again, this tells 15 the Court nothing about how often these types of calls lead to an incorrect “wrong number” 16 disposition. As such, United has put forth no evidence that the Court can use to determine 17 whether this issue would defeat predominance. 18 Because Samson has proposed a class-wide methodology for determining non-United 19 members for the Wrong Number class, and United has not demonstrated consent issues will 20 result in individualized issues predominating, the Court finds that Samson has demonstrated 21 predominance for the Wrong Number Class. 22 23 24 ORDER GRANTING CLASS CERTIFCATION - 20 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 21 of 31 1 b. 2 Unlike the “Wrong Number” class, the “Do Not Call” class is not limited to non- Do Not Call Class 3 members. This changes the Court’s analysis in one critical way. Where the “Wrong Number” 4 class started with the presumption that non-members had not given their consent to be called, the 5 “Do Not Call” class includes class members who are also United members, and who did provide 6 consent to be called. Therefore the analysis turns on the revocation of consent. United argues that 7 Samson’s reliance on its disposition codes to show revocation is misplaced and that determining 8 whether a member truly revoked consent to be called would require individualized trials. The 9 Court finds United fails to put forth sufficient evidence to demonstrate that individualized issues 10 will defeat predominance. 11 The TCPA permits consumers to revoke their prior express consent, but “revocation of 12 consent must be clearly made and express a desire not to be called or texted.” Van Patten, 847 13 F.3d at 1048. When assessing whether a particular means of revocation was reasonable, courts 14 look to the “totality of facts and circumstances surrounding that specific situation, including, for 15 example, whether the consumer had a reasonable expectation that he or she could effectively 16 communicate his or her request for revocation to the caller in that circumstance, and whether the 17 caller could have implemented mechanisms to effectuate a requested revocation without 18 incurring undue burdens.” 30 F.C.C. Rcd. 7961, 64 n.233 (2015 Order). The Ninth Circuit has 19 previously held that declarations and deposition testimony can provide sufficient evidence that 20 individualized consent issues would predominate. True Health, 896 F.3d at 932 (finding 21 variation in communication and relationships with putative class members as evidenced through 22 declaration and deposition testimony sufficient to support denial of class certification under Rule 23 23(b)(3)). Though United has the initial burden of proving prior express consent, “[l]ogic would 24 ORDER GRANTING CLASS CERTIFCATION - 21 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 22 of 31 1 dictate that . . . plaintiffs have the burden to prove that such consent was revoked.” Saulsberry v. 2 Meridian Fin. Servs., Inc., No. CV146256JGBJPRX, 2016 WL 3456939, at *11 (C.D. Cal. Apr. 3 14, 2016). 4 The Court agrees with Samson that common, class-wide evidence will resolve the Do Not 5 Call class’s claims. Samson points to common evidence that United’s “do not call” dispositions 6 demonstrate revocation of consent. (Mot. at 16.) Samson also points to United’s policy that 7 informs staff not to call people with a “do not call” disposition. (Reply at 4.) The policy states 8 that “UnitedHealthcare does not make outbound calls to those Members who have a ‘Do Not 9 Call’ preference captured in the processing system.” (Murray Decl. Ex. 23 (Dkt. No. 179-17). 10 The disposition codes, along with United’s own policies are common proof that will be used to 11 show revocation of consent on a class-wide basis. 12 In opposition, United argues that “do not call” disposition codes do not demonstrate 13 revocation of consent and cannot be relied on as class-wide proof. (Opp. at 7.) United asserts that 14 “do not call” dispositions get entered for a number of reasons, “including: (i) a call agent’s 15 judgment that calls should be suspended because the member was in the hospital, jail, or 16 otherwise unavailable; (ii) member disinterest in a particular campaign; or (iii) member inability 17 to take advantage of a campaign’s benefits.” (Id. at 7-8.; McGavick Decl, ¶ 11; Carter Decl. ¶¶ 18 18-20; Deposition Transcript of Laura Reuden at 122:4-23 (Dkt. No. 214-2); Deposition 19 Transcript of Jennie Jeanette at 86:22-87:1 (Dkt. No. 214-4).) United argues that the unreliability 20 of its records would require call-by-call inquiries to determine if a member actually revoked 21 consent to be called or if the disposition refers to the member’s disinterest or inability to 22 participate in the campaign being called for. 23 24 ORDER GRANTING CLASS CERTIFCATION - 22 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 23 of 31 1 United’s argument falls apart because the evidence it cites applies on a class-wide basis 2 and it does not show how any individualized issues would predominate. United supports its 3 argument with call records and testimony from supervisors who discuss “do not call” 4 dispositions in broad strokes. (See Def. Demonstrative Slides for Oral Args. at 15-20.) For 5 example, United’s 30(b)(6) designee, United’s Vice President, stated “[a] “do not call” 6 disposition code has subjectivity and interpretation by our individual call agent. . . [it] does not 7 necessarily have the same meaning.” (See Pritt Decl. Exhibit 1 (Deposition of Kevin McGavick, 8 United’s (30(b)(6) Designee at 116:1-14) (Dkt. No. 214-1).) A United manager testified to the 9 same thing. (See Pritt Decl. Ex. 4 (Jeanette Dep. at 86:22-87:1) (“Do not call is an Avaya 10 disposition that has many meanings for different teams for different reasons.”).) But this 11 testimony speaks broadly to all class members and whether the “do not call” disposition codes do 12 not mean what they say. If United succeeds in convincing a fact finder that its records are 13 unreliable it would do so on a class-wide basis without the need to examine individual calls. 14 Even if the Court were to hold individual trials for each class member, United has not identified 15 any unique evidence that would vary from class member to class member to show the code did 16 not mean what it says. The same is true for United’s own call records because United has not put 17 forth any evidence to demonstrate how the call records would be utilized differently depending 18 on the class member. 19 Because Samson has shown that revocation of consent is subject to common evidence, 20 and United’s arguments in rebuttal fail to demonstrate how individualized issues with 21 predominate, the Court finds Samson has shown predominance for the Do Not Call class. 22 23 24 ORDER GRANTING CLASS CERTIFCATION - 23 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 24 of 31 1 c. 2 United contends that emergency purposes calls, government-authorized calls, and other United’s call exceptions arguments 3 healthcare message exceptions would require individual analysis that would defeat predominance 4 for both classes. (Opp. at 13.) This argument fails because United’s records can be used to 5 identify these calls without needing individualized trials. 6 The TCPA exempts calls made for emergency purposes. 47 U.S.C. § 227(b)(1)(A)-(B). 7 The Commission’s rules define “emergency purposes” to mean “calls made necessary in any 8 situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The 9 “emergency purposes” exception is intended for “instances [that] pose significant risks to public 10 health and safety, and [where] the use of prerecorded message calls could speed the 11 dissemination of information regarding . . . potentially hazardous conditions to the public.” See 12 1992 Order at 8778, para. 51. There are also healthcare-specific exemptions to the TCPA. One is 13 for “call[s] that deliver [] a “health care” message made by, or on behalf of, a ‘covered entity’ or 14 its ‘business associate,’ as those terms are defined in the HIPAA privacy rule, 45 CFR 160.103.” 15 47 C.F.R. § 64.1200(a)(2). The second was introduced in the FCC’s 2015 Order and applies to 16 most non-telemarketing healthcare calls, although the caller must satisfy a number of conditions. 17 See 2015 Order at 8031-32. 18 In January 2023, the FCC issued a declaratory ruling that allowed government 19 contractors, among others, to make autodialed and prerecorded or artificial voice calls in certain 20 circumstances without violating the TCPA. In Re Rules & Reguls. Implementing the Tel. 21 Consumer Prot. Act of 1991, 2023 Declaratory Ruling. This was done largely so that individuals 22 enrolled in Medicaid under the COVID-19 pandemic eligibility requirements could complete the 23 renewals necessary to redetermine their eligibility in order to remain in the program post- 24 ORDER GRANTING CLASS CERTIFCATION - 24 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 25 of 31 1 pandemic. (Id. at 2.) Calls made about renewing enrollment for state Medicaid programs, 2 Children’s Health Insurance Program, Basic Health Program, or Health Insurance Marketplace, 3 are therefore permissible under the TCPA. (See generally, id.) However, the FCC makes clear in 4 its order that revocation of consent must still be honored, and calls made to telephone numbers 5 that have been reassigned are still subject to TCPA liability. (Id. at 7.) 6 United argues that because the emergency exception analysis turns on the “purpose” of 7 the call, it would require a call-by-call analysis of the content of each call to determine the 8 purpose. (Opp. at 13-14.) United’s argument fails because the campaign code and call reason are 9 both documented in United’s records. (See Murray Decl. Exs. 8, 16; Pritt Decl. Ex. 3 (Dkt. No. 10 193-3); Supplemental Declaration of Jennifer Rust Murray, Ex. 35 (McGavick Dep at 50:22- 11 51:21 (Dkt. No. 214-3).) This means that any campaigns exempt from liability can be removed 12 based on common evidence. This process was proven possible when United searched for calls to 13 Samson. (Murray Supp. Decl. Ex. 33 (Deposition Transcript of Jennie Jeanette at 21:1-22:10) 14 (Dkt. No. 229-1).) 15 Additionally, none of the mostly out of circuit case law United cites to here is applicable. 16 Of the cases, only four actually dealt with class certification, two dealt with a single phone call 17 that could easily be determined to be exempt for healthcare purposes and the other two did not 18 address predominance with regards to the exemptions. See Lindenbaum v. CVS Health Corp., 19 2018 WL 501307 (N.D. Ohio Jan. 22, 2018) (finding that the single class of phone calls made 20 regarding prescription reminders were exempt under the emergency exemption); Zani v. Rite Aid 21 Headquarters Corp., 246 F.Supp.3d 835 (S.D.N.Y. 2017), aff’d, 725, F.App’x 41 (2d Cir. 2018) 22 (granting summary judgment over class certification because the case involved a single call 23 about getting the flu shot); Bridge v. Credit One Fin., 294 F.Supp.3d 1019, 1031 (D. Nev. Feb. 24 ORDER GRANTING CLASS CERTIFCATION - 25 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 26 of 31 1 26, 2018) (denying class certification due to ascertainability issue); Pepka v. Kohl’s Dep’t 2 Stores, Inc., 2016 WL 8919460 (C.D. Cal. Dec. 21, 2016) (finding individualized issues of 3 consent would predominate). Because exempt campaigns can be excluded from the dataset using 4 common evidence, the Court finds this does not defeat predominance. 5 d. 6 United argues that many states have laws which preempt the TCPA, and the McCarran- United’s preemption defense under the McCarran-Ferguson Act 7 Ferguson Act (“MFA”) would require state by state analysis. Because United has not 8 demonstrate that the law of any state preempts the TCPA, this argument fails. The MFA provides: “No Act of Congress shall be construed to invalidate, impair, or 9 10 supersede any law enacted by any State for the purpose of regulating the business of insurance . . 11 . unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012. Under this 12 section, state law preempts a federal statute if “(1) the federal law does not specifically relate to 13 insurance; (2) the purpose of the state enactment is to regulate the business of insurance; and (3) 14 the application of federal law to the case might invalidate, impair, or supersede the state law.” 15 Ojo v. Farmers Group, Inc., 600 F.3d 1201, 1203 (9th Cir. 2010) (per curium) (en banc). As a 16 general rule, “[w]hen federal law is applied in aid or enhancement of state regulation, and does 17 not frustrate any declared state policy or disturb the State’s administrative regime, the McCarran- 18 Ferguson Act does not bar the federal action.” Humana Inc. v. Forsyth, 525 U.S. 299, 303 19 (1999). In order to prevail on this argument, United needs to demonstrate that all three elements 20 of the MFA are met, and that state law would preempt the application of the TCPA. It fails to do 21 this. 22 23 United cites to no support for its assertion that any state law preempts TCPA liability. (See Opp. at 17.) United claims that twenty-eight states have different insurance-specific 24 ORDER GRANTING CLASS CERTIFCATION - 26 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 27 of 31 1 exemptions to state laws governing telephone solicitation, which would require the Court to 2 interpret each state statute. (Id. at 18.) United then argues that there are also state laws that 3 immunize insurers for liability for calls on particular subjects. (Id. at 18.) For instance, United 4 cites to a Washington law that immunizes insurers from liability for any “communications, oral 5 or written, specifying the reasons for cancellation or refusal to renew or the providing of 6 information pertaining thereto.” (Id.) Appendix B attached to United’s brief contains a list of 7 thirteen states and their relevant statutes, the majority of which appear to provide an exemption 8 for liability when a call is made about insurance cancellation or a change in coverage. 9 It does not appear that the TCPA would invalidate or impair any of these laws - and 10 United does not argue that they do. The first category of laws are state laws on telephone 11 solicitation and presumably do not apply under the MFA because laws governing telephone 12 solicitation are not made for the purpose of regulating the business of insurance. Because United 13 fails to demonstrate otherwise it fails to satisfy the second element of the MFA. The second 14 category are laws that presumably regulate the business of insurance. But United still fails to 15 show how the application of the TCPA impairs, invalidates, or supersedes any of these laws. 16 Rather, most of the laws seem to provide exemptions for healthcare calls and emergency 17 purposes. As such, it would appear that the TCPA complements rather than impairs these laws. 18 Absent any analysis to show how even one of these laws is impeded by the TCPA, United’s 19 argument fails. 20 United fails to demonstrate both the second and third elements of the test set forth under 21 the MFA. There is no indication a state-by-state analysis is required that would warrant a finding 22 against predominance. For these reasons, United’s argument fails. 23 24 ORDER GRANTING CLASS CERTIFCATION - 27 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 28 of 31 1 2 F. Rule 23(b)(3) – Superiority The second part of Fed. R. Civ. P. 23(b)(3) asks whether the class action is superior to 3 other available methods for fairly and efficiently adjudicating the controversy. Pertinent inquiries 4 include: 5 6 7 (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; 8 9 10 11 12 (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. Fed. R. Civ. P. 23(b)(3) United makes no arguments against superiority and Samson properly demonstrates 13 evidence supporting Rule23(b)(3)(A)-(C). First, this case involves relatively small recoveries, 14 $500 for each violation, which makes it unlikely that the cases would be brought individually. 47 15 U.S.C. § 227(b)(3)(B). As the Ninth Circuit has explained, “[w]here damages suffered by each 16 putative class member are not large, this factor weighs in favor of certifying a class action.” 17 Zinser v. Accufix Rsch. Ins., Inc., 253 F.3d 1180, 1190 (9th Cir.), opinion amended on denial of 18 reh’g, 273 F.3d 1266 (9th Cir. 2001). Second, while there are other cases currently pending 19 against United involving similar claims, these cases involve different classes and have been 20 indefinitely stayed, which is why the Court unstayed this case. (See Order Lifting Stay (Dkt. No. 21 171).) The Court finds the third factor does not strongly weigh one way or the other. As for the 22 final element, there is a “well-settled presumption that courts should not refuse to certify a class 23 merely on the basis of manageability concerns.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 24 ORDER GRANTING CLASS CERTIFCATION - 28 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 29 of 31 1 1128 (9th Cir. 2017). And there are no obvious difficulties in managing either class. The Court 2 finds Samson has demonstrated superiority. 3 G. United’s Surreply United requests the Court strike three arguments that Samson makes in his Reply brief 4 5 asserting that they were all improperly made for the first time. (See generally, Surreply (Dkt. No 6 234).) The Court disagrees with United’s assertion. 7 United asks the Court to strike the following: (1) Samson’s reliance on deposition 8 testimony to show that he received a pre-recorded call that demonstrates he has standing to bring 9 the claim; (2) Samson’s expert’s report that discusses how she would deal with inconsistent 10 disposition calls; and (3) Samson’s arguments regarding common evidence for “Emergency” 11 calls and use of United’s database to show call location. (Surreply at 2-4 (Dkt. No. 234).) The Court DENIES the motion to strike as to all three categories. All of the arguments 12 13 and evidence United identifies as new are arguments and evidence that Samson submitted in 14 response to novel arguments United makes in its opposition. The Court also held oral arguments, 15 for which United submitted case law and exhibits for the Court to review, some of which 16 responded to Samson’s arguments on these topics. For these reasons, the Court DENIES the 17 motion. 18 H. 19 United’s Supplemental Filing Concerning Oral Argument On October 11, 2023, United filed a Supplemental Filing Concerning Oral Argument. 20 (Dkt. No. 265.) United appears to be answering three questions the Court posed to it during oral 21 arguments. The Court reviewed the filing but ultimately did not consider it as it did not change 22 the outcome of the Court’s analysis. 23 24 ORDER GRANTING CLASS CERTIFCATION - 29 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 30 of 31 1 CONCLUSION 2 Samson has provided sufficient evidence to establish by a preponderance that class 3 certification is appropriate and proper for his claims under the TCPA under Rule 23(a) and 4 23(b)(3). The Court certifies the following classes: 5 Wrong Number Class 6 “All persons residing within the United States who, between January 9, 2015, and January 9, 2019, received a non-emergency telephone call(s) placed using either the Avaya Pro Contact or LiveVox IVR dialing systems from the Medicare and Retirement Non-Licensed Retention Team, the Community and State National Retention Team or the Medicare and Retirement Collections Team, to a cellular phone through the use of an artificial or prerecorded voice, and who, according to Defendant’s records, was not a UnitedHealthcare member at the time of the call.” 7 8 9 10 Do Not Call Class 11 “All persons residing within the United States who, between January 9, 2015, and January 9, 2019, received a non-emergency telephone call(s) placed using either the Avaya Pro Contact or LiveVox IVR dialing systems from the Medicare and Retirement Non-Licensed Retention Team, the Community and State National Retention Team or the Medicare and Retirement Collections Team, to a cellular phone through the use of an artificial or prerecorded voice, and whose telephone number, according to Defendant’s records, was flagged or documented as “do not call,” “final do not contact” or otherwise recorded as a number not to be called.” 12 13 14 15 The Court also appoints Beth Terrell, Jennifer Rust Murray, Adrienne McEntee or 16 Terrell Marshall Group PLLC, David Searles, James Francis, John Soumilas, Jordan 17 Sartell of Francis Mailman Soumilas PC, and Jonathon Shub of Shub & Johns LLC, as 18 class counsel. The parties are directed to meet and confer regarding a plan for sending 19 notice to the class and a form of notice. The parties shall meet and confer, and shall file 20 the proposed notice with the Court no later than October 30, 2023. 21 The Court also DENIES United’s request to strike. 22 // 23 // 24 ORDER GRANTING CLASS CERTIFCATION - 30 Case 2:19-cv-00175-MJP Document 266 Filed 10/13/23 Page 31 of 31 1 The clerk is ordered to provide copies of this order to all counsel. 2 Dated October 13, 2023. 3 A 4 Marsha J. Pechman United States Senior District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING CLASS CERTIFCATION - 31

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