Sapan v. Yelp, Inc.

Background

Jonathan Sapan alleged that Yelp, Inc. violated the Telephone Consumer Protection Act by making solicitation calls to telephone numbers on the federal Do Not Call Registry. He sought certification under Federal Rule of Civil Procedure 23(b)(3) of a nationwide class consisting of people who had residential telephone service, could show that their numbers were on the Registry, and received more than one solicitation call from Yelp within a 12-month period between June 5, 2013, and the present.

The court had previously given Sapan another opportunity to explain how he would identify class members and account for statutory exceptions involving an existing business relationship or consent to receive calls. Fact and expert discovery had already closed. Sapan had obtained only a few months of Yelp’s call records, even though the proposed liability period covered several years. He submitted a declaration from Anya Verkhovskaya describing a proposed “reverse-append” method for analyzing call records, checking numbers against the Do Not Call Registry, excluding business numbers, and linking numbers to specific people.

Class Certification

The court denied class certification. Rule 23 requires a proposed class to satisfy four requirements in Rule 23(a) and at least one requirement in Rule 23(b). The court held that Sapan failed to establish numerosity, which requires evidence that the proposed class is so large that joining all members individually would be impractical. Sapan relied on general percentages concerning the accuracy of Yelp’s phone listings and the percentage of telephone lines on the Registry, but he did not show how those figures translated into the number of people meeting his proposed class definition. He also offered no evidence that Yelp had made the required repeated calls to people on the Registry.

The court found the Verkhovskaya declaration unhelpful because it described a general method rather than applying that method to the evidence in this case. Verkhovskaya had not analyzed even the limited call data Sapan obtained, and she offered no opinion establishing numerosity or any other Rule 23 requirement. The court also questioned the method’s reliability and validity, including concerns that it might fail to identify class members or exclude calls covered by statutory exceptions.

The court separately considered typicality, adequacy, commonality, and predominance. It rejected Yelp’s arguments that Sapan lacked standing or was disqualified because he was allegedly a frequent or “professional” litigant. The court concluded that Sapan had standing and typical claims, and it did not find his counsel inadequate, although it criticized counsel’s handling of discovery and the class-certification presentation.

The court determined that common questions would not predominate over individual questions. The record showed that some people had given their residential or cell phone numbers to Yelp sales employees, and that some business owners had listed residential numbers when registering business pages. Determining whether each person had an existing business relationship with Yelp or had consented to calls would require reviewing that person’s communications and account history. Sapan did not propose a way to identify class members without those individualized inquiries. Because he failed to satisfy the requirements for class treatment, certification was denied.

Motion to Strike and Other Objections

Yelp’s motion to strike the Verkhovskaya declaration was denied. Although the declaration was submitted after discovery and expert proceedings had closed, the court had directed Sapan to file an amended certification motion and had effectively left open the possibility of a new declaration. Yelp had an opportunity to depose Verkhovskaya but did not do so. The court nevertheless stated that the declaration carried no force in Sapan’s favor for certification purposes.

Sapan’s objections to Yelp’s supplemental briefing, declarations, exhibits, and other materials were denied as moot. The court did not rely on the challenged additional evidence.

Disposition

The stay was lifted, the case was administratively reopened, and the case was ordered to proceed solely on Sapan’s individual claim. The parties were directed to submit a joint proposal for a trial date in the second quarter of 2022.