Williams v. PillPack LLC

AARON WILLIAMS, on behalf of himself and all others similarly situated, Plaintiff, v. PILLPACK LLC, Defendant.

No. 3:19-cv-05282-DGE

United States District Court, W.D. Washington, Tacoma

December 23, 2022

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (DKT. NO. 228)

David G. Estudillo, United States District Judge.

I INTRODUCTION

This matter comes before the Court on Plaintiff Aaron Williams's renewed motion for class certification (Dkt No. 228). For the reasons articulated herein, Plaintiff's renewed motion for class certification is GRANTED in part.

II BACKGROUND

The Court has extensively discussed the procedural and factual background of this case in prior orders, and they are incorporated by reference. (See, e.g., Dkt. Nos 140, 220, 258.)

The Court previously granted Plaintiff's motion for class certification on February 12, 2021. (See Dkt. No 140 at 18-19.) The Court certified the following class:

All persons or entities within the United States, whose telephone number was obtained by Prospects DM from Yodel Technologies, LLC or Fluent, Inc., and who between March 13 2018, and June 16, 2019, received a non-emergency telephone call promoting goods or services on behalf of PillPack, LLC, as part of the PillPack Performance Media campaign:

a) to a cellular telephone number through the use of an automatic telephone dialing system or an artificial or prerecorded voice; or

b) to a cellular or residential telephone number that had been registered on the national Do Not Call Registry for at least 31 days and who received more than one call as part of the PillPack Performance Media campaign within any twelve-month period.

Transfers Sub-Class: All Class members who were transferred at least once to a PillPack call center on the Dialed Number Identification Service at: 866-298-0058.

In certifying this class, the Court and the Parties presumed that Prospects DM obtained Williams's phone number from Yodel Technologies, LLC or Fluent, Inc. (See Dkt. No. 140 at 9.) Further discovery later undermined this assumption (see Dkt. No. 179-4 at 14-16), and as such Williams moved to modify the class certification because he no longer was a member of the putative certified class. (Dkt. No. 178 at 1.) The Court rejected this motion and granted Defendant PillPack LLC's (“PillPack”) motion to decertify the class (Dkt. No. 187) because it “fails to meet the requirements under Rule 23.” (Dkt. No. 220 at 14.) In decertifying the class, the Court noted Williams “may be able to define a much narrower class.” (Id.)

On April 22, 2022, Williams filed a renewed motion for class certification. (Dkt. No. 228.) PillPack filed its motion in opposition to renewed class certification on May 20, 2022. (Dkt. No. 243.) Williams filed his reply on July 3, 2022. (Dkt. No. 249.)

III PROPOSED CLASS

Plaintiff moves to certify the following class:

All persons or entities within the United States who between March 13, 2018 and June 16, 2019, received a non-emergency telephone call promoting goods and services on behalf of PillPack, LLC as part of the PillPack Performance Media campaign:

i. to a cellular telephone number through the use of an artificial or prerecorded voice; and

ii. Performance Media or its agents live transferred the call to a PillPack call center on the DNIS 866-298-0058; and

iii. Performance Media or its agents did not obtain the cellular telephone number through Rewardzoneusa.com, Nationalconsumercenter.com, or Surveyvoices.com between June 19, 2017 and May 3, 2019 before the date(s) of the call(s); and

iv. Performance Media or its agents did not obtain the cellular telephone number through the website Financedoneright.com before the date(s) of the call.

(Dkt. No. 228 at 9-10.)

IV DISCUSSION

A. Legal Standard

To certify a class, the Court must determine that class meets “the four requirements of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation” as well as the requirements for one of the types of classes enumerated in Federal Rule of Civil Procedure 23(b). Stromberg v. Qualcomm Inc., 14 F.4th 1059, 1066 (9th Cir. 2021); see also Fed. R. Civ. P. 23. Plaintiff asserts his proposed class meets the requirements of Federal Rule of Civil Procedure 23(b)(3), which requires the Court to find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The burden is on the Plaintiff to establish by a preponderance of the evidence the requirements for class certification are met. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022), cert. denied sub nom. Starkist Co. v. Olean Wholesale Grocery, No. 22-131, 2022 WL 16909174 (U.S. Nov. 14, 2022); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011).

Courts have significant discretion to alter, amend, certify, or decertify classes prior to final judgment. See Fed.R.Civ.P. 23(c)(1)(C); see also Carriuolo v. Gen. Motors Co., 823 F.3d 977, 988 (11th Cir. 2016).

B. The Law of the Case Doctrine Does not Apply

At the outset, the Court rejects PillPack's argument that the law of the case doctrine precludes the Court from determining that a class may be certified based on common questions of consent or vicarious liability. (Dkt. No. 243 at 20.)

The law of the case doctrine provides that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)) (internal quotation marks omitted). However, “[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance.” Id. Furthermore, “[t]he law of the case doctrine applies only sparingly in class certification proceedings, for Rule 23(c) invests broad authority in the district court to alter and amend orders until entry of judgment.” Fair Hous. for Child. Coal., Inc. v. Pornchai Int'l, 890 F.2d 420 at *1 (9th Cir. 1989) (unpublished).

Amending and revising class definitions is common given the nature of class actions and is specifically contemplated by the Federal Rules. Discovery in the class context may yield new insights that warrant amending or decertifying a class, as this case has shown. Given the broad discretion granted to the Court to certify or decertify a class based on new evidence obtained during the course of litigation, the Court finds it is not bound by the law of the case doctrine to apply the Court's prior determinations as to class certification.

Additionally, as Plaintiffs point out, there is new, intervening authority the Court did not previously consider when decertifying the prior proposed class. (Dkt. No. 249 at 14.) The Ninth Circuit's holding in Olean that Rule 23(b)(3) permits a court to certify a class with more than a de minimis number of uninjured class members is directly relevant to this Court's prior analyses of consent-based class certifications. See 31 F.4th at 669.

C. The Requirements for Class Certification are Met a. Numerosity

The Parties do not contest that this requirement is satisfied and the Court is convinced the proposed “class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1).

b. Commonality and Predominance

Common questions of consent and vicarious liability predominate among the proposed class such that class certification is warranted.

The Court analyzes the commonality requirement of Rule 23(a)(2) and predominance requirement of Rule 23(b)(3) together given the significant overlap between the two. See Olean, 31 F.4th at 664 (“The requirements of Rule 23(b)(3) overlap with the requirements of Rule 23(a): the plaintiffs must prove that there are ‘questions of law or fact common to class members' that can be determined in one stroke in order to prove that such common questions predominate over individualized ones.”); see also Kristensen v. Credit Payment Servs., 12 F.Supp.3d 1292, 1304 (D. Nev. 2014) (“Commonality is inherently satisfied if Rule 23(b)(3)'s predominance requirement is met.”). “The predominance inquiry ‘asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.'” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:49, pp. 195-196 (5th ed. 2012)). Courts must “pragmatically compare[] the quality and import of common questions to that of individual questions” and then determine which predominate. Jabbari v. Farmer, 965 F.3d 1001, 1005 (9th Cir. 2020). This is not a quantitative analysis but a pragmatic, qualitative one. See 2 W. Rubenstein, Newberg and Rubenstein on Class Actions § 4:50 (6th ed. 2022). “[M]ore important questions apt to drive the resolution of the litigation are given more weight in the predominance analysis over individualized questions which are of considerably less significance to the claims of the class.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016).

To determine whether common questions predominate over individual ones, the Court must first begin with the elements of the underlying action. See Erica P. John Fund, Inc. v Halliburton, 563 U.S. 804, 809 (2011). In Williams's complaint, he asserts violations of 47 U.S.C. § 227(b)(1), which prohibits parties from using artificial or prerecorded voices to deliver messages to residential phone lines without prior...