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March 21, 2019 by Jeremy N. NashDownload PDF


Holiday Cruise Line Robocall Class Action: Illinois Class CertifiedJeremy N. Nash

The Holiday Cruise Line robocall class action crossed a major milestone on March 21, 2019: the Court granted the plaintiffs’ motion for class certification. Now, the case is not just the three named plaintiffs against one defendant. It is the named plaintiffs plus hundreds of thousands of Illinois residents against Holiday Cruise Line.
  • The Court’s opinion granting class certification is 62-pages long.
  • Read what plaintiffs allege about the Holiday Cruise Line robocalls in the public versions of their opening brief and reply brief to in support of class certification.
  • Learn more about the class action attorney overseeing this litigation.
Requirements For Class Certification

The Court explained that class certification is only appropriate where a plaintiff satisfies the requirements of Federal Rule of Civil Procedure Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation.

A plaintiff must satisfy one of three alternatives in Rule 23(b). In this case, plaintiffs sought certification under Rule 23(b)(3), which requires them to prove that “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.”
Finally, a plaintiff must prove the proposed class is “ascertainable,” meaning that the class is clearly defined, and its parameters is based on objective criteria. Unlike the others, this is an implied requirement created by judges that does come from directly from the text of Rule 23.

Personal Jurisdiction In Class Actions

Before addressing the Rule 23 requirements, the Court took a detour to address a Holiday Cruise Line contention regarding jurisdiction.

Holiday Cruise Line’s argument was that the Supreme Court’s recent ruling in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), limited the Court’s jurisdiction in such a way that it could only grant plaintiffs’ class motion as to other Illinois residents. Virtually every Court that has considered this question has concluded the case does not apply to class actions, but the Court still sided with Holiday Cruise Line, holding it lacked personal jurisdiction to certify a nationwide class.
The Court also rejected plaintiffs’ argument that Holiday Cruise Line waived the right to object to personal jurisdiction, because it had previously conceded that it did not challenge personal jurisdiction and had waited too long to raise the defense. Plaintiffs believe they will eventually be vindicated with respect to their position on personal jurisdiction in this case.

Scope Of Plaintiffs’ Proposed Class Definition

The Court also addressed Holiday Cruise Line’s complaint about the scope of plaintiffs’ proposed class definition before turning the Rule 23 requirements.

Plaintiffs proposed the following class definition:

“All persons in the United States (1) who VVT called from December 29, 2014 through March 20, 2016, to market a cruise aboard the Grand Celebration cruise liner sold by CWT, and (2) who answered such calls.”
 
Holiday Cruise Line argued that plaintiffs improperly expanded the class definition to include consumers who received its unwanted robocalls on landline telephones in addition to those who received the calls on their cell phone. Holiday Cruise Line urged the Court to use the prior, limited class definition, but the Court declined.

Judges may ask for the parties’ help in defining the class, but that obligation ultimately falls on the judge’s shoulders under Rule 23(c)(1)(B). Moreover, courts have complete discretion to modify a class certification decision at any time prior to final judgment. The Court thus used the version of plaintiffs’ class definition that included robocalls to both cell phones and landlines.

Plaintiffs Proposed National Class Contains Millions Of Class Members

There is no set number that serves as a bar or requirement to establish numerosity, but courts have held that a class must generally include more than 40 people to satisfy Rule 23(a)(1).

Here, plaintiffs obtained call records from Sprint and carriers showing that Holiday Cruise Line’s call centers in India had transferred over 1.6 million calls to the defendant’s call centers located in the U.S. Even if limited to Illinois residents, the call records showed that, among those transfers, 40,000 involved Illinois residents.

Like most normal people, the vast majority of the people who received robocalls from Holiday Cruise Line’s telemarketer hung up on them. Recognizing this, the Court held that the total number of illegal outbound calls—and thus the potential number of class members—is likely many times the numbers of transferred calls and that this proof easily established numerosity.

Class Members’ Common Injury Presents A Common Question

To establish commonality, a plaintiff must demonstrate that the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. A common nucleus of operative facts is usually enough to satisfy this requirement, which is set out in Rule 23(a)(2).
Plaintiffs are pursuing a single claim in this case for an alleged violation of the Telephone Consumer Protection Act (TCPA). To prevail on this claim, all plaintiffs must show is that they received calls as part of this call campaign, and that every call included a prerecorded message. The Court was satisfied that they had, because class members all received the same robocall from Holiday Cruise Line’s telemarketer utilizing the same telemarketing software.
Still, Holiday Cruise Line argued some of the telemarketing agents may have “unmuted” their microphones to speak directly to class members, that the agents had discretion not to use the prerecorded voice messages at all, and that individualized questions exist as to whether those agents were running multiple robocalls simultaneously. The Court rejected all of these arguments as either irrelevant or contrary to plaintiffs’ evidence.

Plaintiffs’ Claims Are Typical Of The Class

In every class action, the class representative’s claims must arise from the same events or course of conduct that gives rise to class members’ claims. This is the “typicality” requirement embodied in Rule 23(a)(3).

Plaintiffs argued that their claims are typical of the class members because they all arise from the same course of conduct—namely, Holiday Cruise Line’s use of a telemarketer to call class members and play audio recordings marketing a “free” trip aboard the Grand Celebration cruise ship. Plaintiffs are also pursuing their claims based on the same legal theory of being subjected to unwanted prerecorded voice messages. The Court agreed and ruled plaintiffs are typical of the class members they proposed representing.

Holiday Cruise Line was unable to mount a serious challenge on this point. The Court noted that its arguments rested on “a series of inconsequential facts” and rejected each of them.

Plaintiffs’ Interests Are Aligned With The Class And Their Lawyers Have “Significant Experience” Pursuing Robocall Class Actions

Because named plaintiffs in class actions represent thousands, sometimes millions, of other people not involved with the litigation, courts scrutinize them and their lawyers to ensure they will fairly and adequately protect the interests of the class, as required under Rule 23(a)(4).

Holiday Cruise Line could articulate no conflicts of interests between the plaintiffs and class members and none were apparent to the Court. As such, for essentially the same reasons it found they had satisfied the typicality requirement, the Court ruled plaintiffs had proved they would be adequate class representatives.

Holiday Cruise Line was also unable to challenge the adequacy of plaintiffs’ lawyers who have, collectively, filed hundreds of class actions and recovered hundreds of millions of dollars in compensation for consumers, employees, investors, and others around the country. Based on its own assessment, the Court concluded that plaintiffs’ lawyers would adequately represent the interests of the class based on their “significant experience with class action TCPA litigation and has the resources to pursue this action.”

Plaintiffs’ Class Definition Is Definite Enough

In addition to the four requirements of Rule 23(a), some courts evaluate a fifth, implied requirement that the membership of the class be sufficiently definite or ascertainable. To meet satisfy this test, a class definition must identify a particular group of individuals harmed in a particular way during a specific period. There is no need to ascertain class members’ actual identities—it is enough that the class be ascertainable. Holiday Cruise Line raised a remarkable seven arguments against ascertainability. These arguments, in one form or another, all question the validity and reliability of plaintiffs’ proposed method for class member identification. The Court rejected them all, finding that, “[a]t this stage, such arguments do not carry much weight.”

For example, Holiday Cruise Line argued there is no accurate and reliable way of identifying class members from just their phone numbers. As the Court explained, this argument misapprehends the law, which does not require plaintiffs to demonstrate there is an administratively feasible way of identifying everyone who falls within the class definition.

The Court did not stop there. It went on to hold, to the extent there are any difficulties in identifying class members, Holiday Cruise Line is to blame:

“It is also worth mentioning that any difficulties [Holiday Cruise Line] raises in identifying class members can be attributed to [its] failure to keep records of the individuals it hired [its telemarketer] to call.”

The Court was thus ultimately satisfied that plaintiffs’ class definition met the implied ascertainability requirement.

“Plaintiffs’ Case Is Susceptible To Proof Common To The Class”

Having found that plaintiffs met all the express and implied requirements of Rule 23(a), the Court turned to Rule 23(b)(3), which requires plaintiffs show that questions of law or fact common to the class members predominate over any questions affecting only individual class members. There is no mathematical or mechanical test for evaluating predominance. It is satisfied when common questions represent a significant aspect of a case and can be resolved for all class members in a single adjudication.

Holiday Cruise Line argued that individual issue would predominate over issues common to the class, but its arguments rested on assertions that the Court had already rejected:

“The Court need not reiterate the reasons for which it found each of [Holiday Cruise Line’s] assertions without merit. Suffice it to say, plaintiffs’ case is susceptible to proof common to the class: whether [Holiday Cruise Line’s telemarketer] called class members on [Holiday Cruise Line’s] behalf as part of the Grand Celebration marketing campaign and whether those calls included prerecorded messages. That definition does not leave much room for variation and is undoubtedly common to each class member.”
 
The Court also noted that plaintiffs are pursuing the same statutory damages of $500 to $1,500 per illegal robocall, so the question of appropriate remedies also is common to the class.

The “Superior” Method For Litigating Plaintiffs’ Claims Is A Class Action

The final requirement of Rule 23(b)(3) is establishing that a class action is superior to other methods available to adjudicate the controversy at issue. The Court explained in its opinion that superiority is a comparative assessment, meaning courts must consider the efficiency of a class action with an eye toward other available methods.

Consistent with the theme of its opposition to class certification generally, Holiday Cruise Line argued superiority could not be met in this case for reasons related to class member identification. Apart from the Court’s finding that any difficulties related to class member identification could be attributed to Holiday Cruise Line’s “failure to keep records,” the Court held that plaintiffs had come forward with enough evidence to establish that they would be able to identify and send direct notice to a significant number of class members. As such, the Court found that class treatment of the case would provide the fairest and most efficient adjudication of the alleged violations of the TCPA.

For those and other reasons, the Court granted plaintiffs’ motion for class certification.

If you received an unwanted robocall and are interested in pursuing a class action, please call or email Jeremy Nash today for a free case evaluation.