Drazen v. Godaddy.com, LLC

SUSAN DRAZEN, on behalf of herself and others similarly situated Plaintiffs, v. GODADDY.COM, LLC, Defendant.

JASON BENNETT, on behalf of himself and others similarly situated Plaintiffs, v. GODADDY.COM, LLC, Defendant.

CIVIL ACTION: 1:19-00563-KD-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 14, 2020

ORDER

This matter is before the court on Plaintiff Susan Drazen's unopposed motion for preliminary approval of a proposed class action settlement and for preliminary certification of the settlement class. (Doc. 20); Defendant GoDaddy.com, LLC's responsive brief regarding standing (Doc. 39); Plaintiff Susan Drazen's brief regarding standing (Doc. 40); and Plaintiff Susan Drazen's Joint Statement Modifying the Settlement Class Definition (Doc. 41).

I. Background

On January 10, 2020, Susan Drazen filed an unopposed Motion for Preliminary Approval of Class Action Settlement. (Doc. 20). On February 19, 2020, this Court accepted the transfer of the Bennett Matter (Case No. 2:16-cv-3908 (D. Az. 2016) from the District of Arizona. The Court consolidated the Bennett Matter with this case, Drazen v. GoDaddy.com, LLC, Civil Action No. 19-00563-KD-B (S.D. Ala. 2019), on February 21, 2020. (Doc. 29). A third related action, Herrick v. GoDaddy.com, LLC (No. 2:16-cv-00254 (D. Ariz), appeal pending 18-16048 (9th Cir.)) "is incorporated into and resolved by the Parties' settlement." (Doc. 39 at 2, n.1). See also (Doc. 40 at 1, n.1). Also on February 21, 2020, the Court sua sponte ordered the parties to submit briefing distinguishing their case from Salcedo v. Hanna, 936 F.3d 1163 (11th Cir. 2019); the parties basis for standing; and whether the proposed settlement class included putative class members who received a single text message. (Doc. 30).

Plaintiffs¹ bring this proposed class action alleging GoDaddy.com, LLC (GoDaddy) violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. Specifically, Plaintiffs allege that GoDaddy violated the Act by placing calls and sending text messages to Plaintiffs' cellular telephones, marketing its products and services. Plaintiffs allege that these calls and text messages were sent using an "automatic telephone dialing system" (ATDS), as defined by 47 U.S.C. § 227(a)(1) and prohibited by 47 U.S.C. § 227(b)(1)(A). Further, Plaintiffs contend GoDaddy's contacts were not made for emergency purposes and were made using an autodialing system that did not require human intervention. Plaintiffs also allege that GoDaddy did not have their prior express written consent to place the calls or send the text messages.

The TCPA makes it unlawful "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice" "to any telephone number assigned to a paging service, cellular telephone service..." 47 U.S.C. § 227(b)(1)(A), 227(b)(1)(A)(iii).

II. Class Certification

A. Statement of the Law

When the plaintiff requests class certification for purposes of a settlement-only class, the Supreme Court has explained as follows:

Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, ..., for the proposal is that there is to be no trial. But other specifications of the Rule—those designed to protect absentees by blocking unwarranted or overbroad class definitions—demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold.

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815, 848-49 (1999) ("When a district court, as here, certifies for class action settlement only, the moment of certification requires heightened attention... to the justifications for binding the class members.") (internal quote omitted).

In addition "'[f]or a class action to be certified, the named plaintiff must have standing, and the putative class must satisfy both the requirements of Federal Rule of Civil Procedure 23(a), and the requirements found in one of the subsections of Rule 23(b).'" Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019) (citing City of Hialeah v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002)). The Rule 23(a) requirements for certification of any class action are: "(1) numerosity ('a class [so large] that joinder of all members is impracticable'); (2) commonality ('questions of law or fact common to the class'); (3) typicality (named parties' claims or defenses "are typical ... of the class"'; and (4) adequacy of representation (representatives 'will fairly and adequately protect the interests of the class')." Amchem, 521 U.S. at 613; Vega, 564 F.3d at 1268 (same); Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003) (same). The Federal Rules provide that a "class action may be maintained if Rule 23(a) is satisfied and if" the provisions of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3) are satisfied. Fed. R. Civ. P. 23(b)("Types of class actions"). Thus, "[i]n addition to establishing the requirements of Rule 23(a), a plaintiff seeking class certification must also establish that the proposed class satisfies at least one of the three requirements listed in Rule 23(b)." Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012). And see Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 311 F.R.D. 688, 698 (S.D. Fla. 2015) (citing Little v. T-Mobile USA, Inc.); Diamond v. Hastie, 2019 WL 1994467, *4 (S.D. Ala. 2019).

In Vega, the Eleventh Circuit explained as follows:

Although the trial court should not determine the merits of the plaintiffs' claim at the class certification stage, the trial court can and should consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied. [Valley Drug Co., 350 F.3d 1181 at 1188 n.15] (citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982)); see Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n. 12, 98 S.Ct. 2454, 2458 & n. 12, 57 L.Ed.2d 351 (1978) ("[t]he class determination generally involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action.' ... 'The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits.' ") (emphasis and citations omitted); Huff v. N.D. Cass Co. of Ala., 485 F.2d 710, 714 (5th Cir. 1973) (en banc) ("It is inescapable that in some cases there will be overlap between the demands of [Rule] 23(a) and (b) and the question of whether plaintiff can succeed on the merits."); [Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996)), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131 (2008)] ("Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.").

Vega, 564 F.3d at 1265-66 (footnotes omitted).

Overall, the "party seeking class certification has the burden of proof." Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1233 (11th Cir. 2016) (citing Valley Drug Co., 350 F.3d at 1187 (italics in original)).

B. Class Definition

In the unopposed motion, Plaintiffs, on behalf of the class, seek preliminary certification of the settlement class under Rules 23(a) and 23(b)(3). (Doc. 20 at 24). In the Settlement Agreement, for purposes of the class settlement only, the parties agreed to a definition of the settlement class as follows:

The proposed Settlement would establish a Settlement Class defined as follows:

(a) All persons within the United States who received a call or text message to his or her cellular telephone from Defendant during the Class Period.

(b) Excluded from the term "Settlement Class" are: (1) the trial judges presiding over the Actions; (2) Defendant, as well as any parent, subsidiary, affiliate or control person of Defendant, and the officers, directors, agents, servants or employees of Defendant; (3) the immediate family of any such person(s); (4) any Settlement Class Member who timely and properly opts out of the settlement; and (5) Class Counsel, their employees, and their immediate family.

(Doc. 20-1 at 10). "Class Period" is defined as "the period from November 4, 2014 through December 31, 2016." (Id. at 6).

At the hearing, the Court and the parties discussed amending the definition to more narrowly define the settlement class. The parties thereafter proposed the following modified definition:

(a) All persons within the United States to whom, from November 4, 2014 through December 31, 2016, Defendant placed a voice or text message call to their cellular telephone pursuant to an outbound campaign facilitated by the web-based software application used by 3Seventy, Inc., or the software programs and platforms that comprise the Cisco Unified Communications Manager.

(b) Excluded from the term "Settlement Class" are (1) the trial judges presiding over the Actions; (2) Defendant, as well as any parent, subsidiary, affiliate or control person of Defendant, and the officers, directors, agents, servants or employees of Defendant; (3) the immediate family of any such person(s); (4) any Settlement Class Member who timely and properly opts out of the settlement; and (5) Class Counsel, their employees, and their immediate family.

(Doc. 41 at 4).

Since the parties submitted a proposed modified class definition narrowing the settlement class, the parties' Settlement Agreement (Doc. 20-1) is deemed modified to...