United States District Court, D. New Hampshire
Robert W. Clough, II on behalf of himself and other similarly situated
Revenue Frontier, LLC et al.
M. Washkowitz, Esq. Edward A. Broderick, Esq. Jeremy A.
Cohen, Esq. Matthew P. McCue, Esq. Roger B. Phillips, Esq.
Ari N. Rothman, Esq. Daniel S. Blynn, Esq. Justin B.
Nemeroff, Esq. Shahin O. Rothermel, Esq. Arnold Rosenblatt,
Esq. Kathleen M. Mahan, Esq.
MEMORANDUM AND ORDER
BARBADORO PAUL BARBADORO UNITED STATES DISTRICT JUDGE.
W. Clough, II, filed this action on behalf of himself and
similarly situated individuals under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227,
against Revenue Frontier, LLC, Supreme Data Connections, LLC,
and William Adomanis. The complaint alleges that the
defendants violated the TCPA by sending unsolicited text
messages advertising the services of National Tax Experts,
Inc., to Clough and other recipients using an automatic
telephone dialing system. Clough has moved to certify a
plaintiff class and appoint his attorneys as class counsel.
The defendants object, arguing that Clough lacks Article III
standing and cannot meet the requirements of Federal Rule of
Civil Procedure 23.
14, 2017, Clough received a text message on his cellular
telephone. The message stated, “Hi, Did you ever take
care of your IRS/State Tax Debt? I can eliminate back taxes,
penalties, liens, levies. . . Call us for help.” Am.
Compl. ¶ 30, Doc. No. 88. Although Clough did not owe
any back federal or state taxes, he called the number from
which the text was sent, provided a fake name, and feigned
interest in the solicited services to identify the entity
that called him. He learned that the text message was a
solicitation for National Tax Experts, Inc.
however, did not send the text message itself. Instead, it
hired a company called Airtime Media LLC to promote NTE's
tax relief services and generate inbound customer calls.
Airtime Media, in turn, hired Revenue Frontier as a lead
generator for the NTE campaign. Revenue Frontier then engaged
W4, LLC to promote NTE's services on behalf of Revenue
Frontier. W4 is an affiliate network that has agreements with
independent contractors known as “affiliates” or
“publishers” who use various methods to promote
products and services and to encourage customers to visit
websites or call telephone numbers to purchase products or
services. In this case, W4 arranged for its affiliate, U.E.G.
Inc., to promote NTE's services via text
messages. U.E.G. then hired Supreme Data
Connections, LLC (“Supreme Data”) to send text
messages for the NTE campaign. Defendant Adomanis is Supreme
Data's manager and registered agent.
the discovery process, Supreme Data produced a list of text
messages it sent for the NTE campaign. Clough's expert
witness Anya Verkhovskaya analyzed the list and concluded
that 18, 937 wireless numbers received 18, 971 texts
messages. See Pl.'s Ex. 13. ¶ 44, Doc. No.
91-14. Another expert witness, Randall Snyder, has opined
that the platform utilized to send the texts (the SDC
Messaging Application employing the Sendroid software)
qualifies as an automatic telephone dialing system
(“ATDS”). See Pl.'s Ex. 15 ¶
61, Doc. No. 91-16.
alleges that he did not consent to the receipt of any text
message promoting tax debt relief services. The defendants
have yet to produce any evidence that calls Clough's
allegation into question. Nor have the defendants identified
any evidence that the other recipients of the 18, 971 text
messages consented to receive them.
CLASS CERTIFICATION STANDARD
Rule of Civil Procedure 23 sets out the requirements for
class certification. The proposed class representative must
demonstrate that each of the rule's requirements has been
satisfied. Makuc v. Am. Honda Motor Co., 835 F.2d
389, 394 (1st Cir. 1987). The class certification inquiry has
three steps. First, the class representative must show that
the proposed class satisfies all four of Rule 23(a)'s
threshold requirements, which are commonly known as
numerosity, commonality, typicality, and adequacy.
See Fed.R.Civ.P. 23(a)(1)-(4); see also Berenson
v. Nat'l Fin. Servs. LLC, 485 F.3d 35, 38 (1st Cir.
2007). Second, the class representative must demonstrate that
the lawsuit may be maintained as a class action under one of
the three subsections of Rule 23(b), which allow class
actions where: (1) separate actions by or against individual
class members would risk imposing inconsistent obligations on
the party opposing the class; (2) “the party opposing
the class has acted or refused to act on grounds that apply
generally to the class” and injunctive relief is
suitable; or (3) common questions of law or fact predominate
and a class action would be the superior method of
proceeding. Fed.R.Civ.P. 23(b). Third, the representative
must show that “a putative class [is] ascertainable
with reference to objective criteria.” In re Nexium
Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015)
(quoting William B. Rubenstein, Newberg on Class Actions
§§ 3:1, 3:3 (5th ed. 2013)).
a court should not decide the merits of a case at the
certification stage, Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 177-78 (1974), a motion to
certify “generally involves considerations that are
‘enmeshed in the factual and legal issues comprising
the plaintiff's cause of action.'” Coopers
& Lybrand v. Livesay, 437 U.S. 463, 469
(1978) (quoting Mercantile Nat'l Bank v.
Langdeau, 371 U.S. 555, 558 (1963)). The First Circuit
has held that “[a] district court must conduct a
rigorous analysis of the prerequisites established by Rule 23
before certifying a class.” Smilow v. Sw. Bell
Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003). In
doing so, a court may resolve disputed factual issues that
arise in the course of class certification by considering
materials beyond the pleadings. In re PolyMedica Corp.
Sec. Litig., 432 F.3d 1, 6 (1st Cir. 2005).
proposes to certify the following class:
(1) All persons in the United States who are the users or
subscribers of the approximately 18, 937 cellular telephones
identified in Anya Verkovshkaya's report (2) to which
cellular telephone numbers a text message was sent [(3)]
using the SDC Messaging Application, employing the Sendroid
software [(4)] within four years of the filing of the
Doc. No. 91 at 1. He asserts that the proposed class
satisfies all of the Rule 23(a) prerequisites and is eligible
for certification under Rule 23(b)(3). The defendants object
to class certification on the grounds that (1) Clough and
other proposed class members lack standing to sue; and (2)
the proposed class does not satisfy several of Rule 23's
requirements. I address the defendants' standing argument
first because a court lacks subject matter jurisdiction
unless the plaintiffs have Article III standing. See
Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d
98, 101 (1st Cir. 2014).
Article III Standing
defendants argue that Clough and other members of the
proposed class lack standing to sue because they did not
suffer a concrete injury. The defendants are wrong.
“limits the category of litigants empowered to maintain
a lawsuit in federal court to seek redress for a legal wrong,
” and “requires a concrete injury even in the
context of a statutory violation.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547, 1549 (2016). “When
one sues under a statute alleging the very injury the statute
is intended to prevent, and the injury has a close
relationship to a harm traditionally providing a basis for a
lawsuit in English or American courts, a concrete injury has
been pleaded.” S ...