George v. Shamrock Saloon II LLC

Background

Meghan George brought this proposed class action against Shamrock Saloon II LLC, doing business as Calico Jack’s Cantina; Blitz Marketing, LLC; John L. Sullivan; and Does 1 through 20. She alleged that the defendants violated the Telephone Consumer Protection Act by sending dozens of promotional text messages about events and specials to her cellphone without consent, using an automated telephone dialing system.

George moved for class certification under Federal Rule of Civil Procedure 23. Magistrate Judge Pitman recommended certifying a class consisting of 67,630 people who received promotional text messages from the defendants between March 26, 2015, and September 1, 2017, using an automated dialing system, and from whom the defendants could not affirmatively show prior express written consent.

Review of the Objections

The defendants filed objections to the recommendation. The court explained that timely, specific objections receive a fresh review, while portions without proper objections are reviewed only for clear error, meaning an obvious mistake.

The defendants raised two new arguments for the first time in their objections. First, they challenged the expert’s finding that 67,630 people received promotional messages, arguing that only people on a smaller general mailing list received advertisements. Second, they argued that witness testimony could establish prior express written consent without documentary evidence. The court declined to consider either argument because the defendants could have raised them earlier, did not identify intervening law or evidence, and had not explained their delay. The court stated that the defendants could use the witness’s testimony if they later raised consent as an affirmative defense.

The defendants also repeated an argument that George’s claim was subject to an older, less demanding consent standard because the defendants obtained her phone number before the Federal Communications Commission’s 2012 order took effect. The court reviewed that issue for clear error and rejected the argument. It held that the applicable consent standard depends on when the messages were sent, not when the defendants obtained the phone number. Because the challenged messages were sent after the newer standard took effect, the same prior express written consent standard applied to George and the proposed class members.

Class-Certification Requirements

The court agreed that the proposed class met Rule 23’s requirements:

- Numerosity: The proposed class had 67,630 members, making it impractical to join everyone in one case. - Commonality: The class members shared factual and legal questions, including whether the defendants sent promotional texts using an automated dialing system and whether they had the required consent. - Typicality: George’s claim arose from the same conduct and involved the same consent standard as the class members’ claims. - Adequacy: The court found no conflict between George and the class and noted that the defendants did not challenge George’s ability or her lawyers’ ability to represent the class. - Ascertainability: The class members could be identified using objective information, including cellphone numbers in the defendants’ records. - Predominance: Common questions about the defendants’ text-message practices and consent predominated over individual questions. The court rejected the defendants’ assumption that different consent standards would apply to different class members. - Superiority: A class action was a better method for resolving the claims because there was no indication that class members had unique interests in controlling separate lawsuits, had already brought related actions, or would create unmanageable case-by-case issues. The court also noted that each individual claim was statutorily limited to $500.

Disposition

Judge Ronnie Abrams adopted Magistrate Judge Pitman’s recommendation in its entirety and granted George’s motion for class certification. The Clerk was directed to lift the stay and terminate the motions pending at docket entries 57 and 85. The parties were directed to submit a joint letter by February 14, 2020, addressing proposed next steps, including possible settlement discussions through a magistrate judge or the district’s mediation program.