Smith v. Truman Rd. Dev., LLC, Case No. 4:18-cv-00670-NKL

ZACHARY SMITH and BRIAN KAGARICE,individually and on behalf of all others similarly situated, Plaintiffs, v. TRUMAN ROAD DEVELOPMENT, LLC d/b/a NO OTHER PUB, THE CORDISH COMPANIES, INC.,ENTERTAINMENT CONSULTING INTERNATIONAL, LLC, Defendants.

Case No. 4:18-cv-00670-NKL

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

April 28, 2020

ORDER

Pending before the Court are Plaintiff Smith's motion for class certification, Doc. 131, Plaintiffs' motion for partial summary judgment, Doc. 148, Defendants' motion for summary judgment, Doc. 145, and Defendants' motion to exclude expert testimony, Doc. 141. For the reasons stated below, Plaintiffs' motion partial summary judgment is denied. Defendants' motion for summary judgment is granted in part and denied in part. Defendants' motion to exclude expert testimony is denied. Plaintiff Smith's motion for class certification is denied.

I. BACKGROUND¹

Plaintiffs Zachary Smith and Brian Kagarice's Second Amended Class Action Complaint against Defendants Truman Road Development, LLC d/b/a No Other Pub ("No Other Pub"), theCordish Companies, Inc. ("Cordish Companies"), and Entertainment Consulting International, LLC ("ECI") alleges violations of the Telephone Consumer Protection Act and its implementing regulations. See Doc. 54 (Second Amended Complaint). The Second Amended Complaint states that between April 25, 2014, and April 4, 2018, Plaintiffs and putative class members received text messages and phone calls that they had not consented to from Defendants advertising No Other Pub's products and services. Specifically, Plaintiffs allege the following causes of action:

• Count I (the ATDS Claim) - violations of 47 U.S.C. § 227(b)(1)(A)(iii) for using an ATDS to send text messages without consent;

• Count II (the Procedural Claim) - violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d) for sending text messages without first implementing adequate procedures to prevent telemarketing calls or text messages to persons who request not to receive calls or text messages by that entity;

• Count III (the Do-Not-Call Claim) - violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(c)(2) for making more than one telephone solicitation to a person on the NDNCR in a twelve-month period;

• Count IV (the Revocation Claim) - violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d)(3) for transmitting more than one advertising and/or telemarketing text message and/or telemarketing phone call within any twelve-month period after being requested to stop.²

Plaintiff Smith also seeks to certify a class under Count I.

No Other Pub is one of a series of drinking establishments located within the Kansas City Power & Light District, which is a retail, entertainment, office, and residential district located in downtown Kansas City, Missouri. Doc. 146-20 (Tara Knipp Declaration). As part of its promotions, No Other Pub offered contests, promotions, giveaways, and cocktail parties to individuals through text messages. Id. No Other Pub contends these messages were sent to its patrons who visited and voluntarily provided their contact information in order to sign-in to a happy hour or win one of these prizes or events. Id. Putative class members' contactinformation was obtained when guests submitted their information on a Paper Card or signed into a hosted happy hour on a sign-in sheet in order to receive drink specials. Id.; Doc. 146-21 (Sample Sign-In Sheet); Doc. 146-22 (Sample Sign-In Sheet). No Other Pub claims that upon collecting contact information, its employees manually entered the information into the bar's texting platform Txt Live and subsequently shredded the sign-in sheets or Paper Cards. Doc. 146-20.

In January 2017, Smith visited No Other Pub to attend a happy hour hosted by a friend. Doc. 146-2 (Smith Interrogatory Response). On that visit, Smith provided his contact information on a sign-in sheet in order to check-in to the happy hour, receive discounts on drinks, and enter a raffle for a free happy hour. Doc. 146-3 (Smith Deposition), pp. 128, 219. This information included his name, phone number, and birthdate. Doc. 179-21 (Smith Deposition), pp. 13-14, 177. Smith claims that an employee told him he would be contacted about winning a potential raffle that evening but did not mention the possibility of future texts. Id. at 127-29. Smith subsequently purchased drinks at the discounted happy hour price. Doc. 146-24 (Smith No Other Pub Transaction Record). No Other Pub's records reflect that Smith's information was entered into the Txt Live platform one week later. Doc. 146-5 (Smith Contact in Txt Live). Shortly thereafter, on February 1, 2017, a No Other Pub staff member messaged Smith informing him that he had won a happy hour party, stating "Hi Zach, This is Tara at No Other Pub. You entered to win a late night Happy Hour Party where YOU get drinks on US & we selected your name interested?" Doc. 146-31 (Smith Txt Live Message Records). Smith responded "Yes definitely!" Id. No Other Pub sent similar offers for parties with drink specials in July 2017, October 2017, and January 2018. Id. Smith again visited No Other Pub and made purchases in July 2017 and September 2017. Doc. 146-23 (Smith No Other Pub TransactionRecord); Doc. 146-25 (Smith No Other Pub Transaction Record). Smith has been registered on the national do-not-call registry since November 2, 2007. Doc. 175-33 (Smith NDNCR Confirmation).

Plaintiff Kagarice, however, has never been to No Other Pub. Doc. 179-24 (Kagarice Interrogatory Response). He received his first text message from No Other Pub in April 2017. Doc. 146-33 (Kagarice Txt Live Message Records). This first message stated "Hi Brian. This is Tara at No Other Pub. You've been selected for a late night VIP party with drinks on us and exclusive deals for your friends. You in?" Id. Kagarice responded asking how No Other Pub obtained his number, because he had never been to No Other Pub or entered a contest. Id. No Other Pub responded, "Then someone must have put your number down. I have no way of receiving your number any other way." Id. Kagarice then stated that he was not interested, and No Other Pub responded, "Thanks. I will remove you from the list." Id. No Other Pub's records reflect that Kagarice was then added to its opt-out list. Doc. 146-34 (No Other Pub Opt-out List); Doc. 146-35 (Txt Live Opt-out Record).

Kagarice did not receive any additional text messages, however he claims that No Other Pub called him at least once before and at least once after this text message exchange encouraging him to visit No Other Pub for a happy hour, and he remembers that one of these calls was made by a woman . Doc. 179-23 (Kagarice Deposition), pp. 52-54; Doc. 179-24. He does not recall the precise dates that he received these calls, although he testified that he believes that each occurred within one year prior to and within the year following the text message exchange. Doc. 179-23, pp. 125-26. Defendants contend that it is not typically their practice to make phone calls regarding their happy hour program, although they do admit that No Other Pub staff would at times use their personal phones to communicate with customers. Doc. 179-26 (NoOther Pub Interrogatory Responses). However, when they requested that Kagarice search his phone records for a set of six phone numbers that No Other Pub potentially could have called Kagarice with, there was no record of calls from these identified numbers. Doc. 146-11 (Stipulation). Kagarice has been registered on the national do-not-call registry since July 12, 2005. Doc. 149-38 (Kagarice NDNCR Confirmation).

Kagarice received these messages on his cell phone, which he claims is his only phone and is used primarily for personal purposes. Doc. 179-23. However, up to forty percent of his cell phone usage was related to his employment. Id. Kagarice is on a family plan with his parents and wife, and the bill is paid each month by his mother, whom he reimburses. Id. His portion of the monthly phone bill is ninety dollars, and his employer reimburses him seventy-five dollars each month, regardless of what percentage of his phone usage was dedicated to business. Id.

During the relevant time period, No Other Pub used Txt Live to send its promotional messages, a messaging platform developed by ECI. Doc. 146-18 (Keith Hudolin Declaration). In order to send messages using Txt Live, a venue employee imported contacts into the system database, either by individually typing in the contact's information or by uploading a spreadsheet of contacts in a comma-separated values (CSV) file. Doc. 146-12 (Benjamin Rodriguez Deposition); Doc. 146-13 (Blake Miller Deposition). This step was essential, as the platforms could not generate phone numbers independently. Doc. 179 (Plaintiffs' Response to Defendants' Statement of Facts), p. 43. To send text messages, a venue employee logged into the system, identified the number of individuals to be texted, narrowed the potential group of recipients by selecting the characteristics of those individuals if desired (e.g. recently added contact, birth date, etc.), typed out a message or selected a pre-saved message in the system, and pressed send. Doc.146-20. When a venue employee narrowed down the potential contacts to be messaged, either by determining a certain number of contacts and/or by filtering the contact characteristic, the system would then use a "shuffle" function to randomly select which contacts would be messaged. Doc. 146-12; Doc. 146-13. If a recipient responded by asking a question or by accepting the venue's offer for a giveaway or event, a venue employee could then message back and forth with the recipient in Txt Live regarding details. Doc. 146-20.

The precise nature of the relationship between No Other Pub, ECI, and Cordish Companies as well as ECI's and Cordish Companies' involvement with the messaging campaigns are disputed. ECI is a consultant firm based in Maryland...