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Bennett v. Godaddy.Com LLC

United States District Court, D. Arizona

March 15, 2019

Jason Bennett, Plaintiff,
v. LLC, Defendant.

          SEALED ORDER

          Honorable Roslyn O. Silver, Senior United States District Judge.

         Plaintiff Jason Bennett received calls on his cellular phone from Defendant, LLC. Plaintiff believes those phone calls were “telemarketing calls” prohibited by the Telephone Consumer Protection Act (“TCPA”). Plaintiff now seeks to certify a class of approximately XXXXX individuals who received similar calls on their cellular phones. GoDaddy opposes class certification, primarily arguing each call was unique and the Court would have to conduct “individualized inquiries” to determine which of the calls qualified as “telemarketing.” Class certification is not the proper time to delve too deeply into the merits of Plaintiff's claim. See Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.”). And the inquiry into the purpose of particular calls must be done with “a measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). Class certification is appropriate.


         Defendant is “the world's largest technology provider dedicated to small businesses with over 17.5 million customers worldwide.” (Doc. 123-1 at 3). Defendant provides web-based products and services, such as domain name registration and website hosting. Plaintiff is a small business owner who, sometime prior to September 2015, purchased services from Defendant. (Doc. 122-1 at 46). In doing so, Plaintiff provided a contact number. Plaintiff later updated his contact number to his cellular number. Plaintiff did not provide express written consent that Defendant could make telemarketing calls to his contact number. Despite the absence of consent, Defendant placed two calls to Plaintiff's cellular telephone line.[1] The parties disagree on why those calls were made. To understand why the legality of those two calls presents common issues, the Court must explore Defendant's operations in some detail.

         I. Defendant's Operations

         Defendant describes its XXXXX (Doc. 123-1 at 3). Defendant refers to its XXXXX as the “Customer Development Team” or “CDT.” (Doc. 123-1 at 2). XXXXX Defendant believes it is inaccurate to view the CDT as primarily engaged in sales but XXXXX[2]

         According to a job posting for a position with the CDT, Defendant considered it an “inside sales team.” The job posting described the position as “an outbound sales position, calling our existing customers to discuss their products and services.” (Doc. 122-1 at 24).

         In describing who should apply, the job posting stated "applicants with a very strong sales background [would be] contacted first." In addition, applicants were expected to have the "[a]bility to close business sales." (Doc. 122-1 at 25).

         Once an individual was hired for a position with the CDT, XXXXX (Doc. 122-1 at 19). XXXXX (Doc. 122-1 at 19). XXXXX[3]

         (Doc. 122-1 at 3). XXXXX (Doc. 122-1 at 3). XXXXX (Doc. 122-1 at 5). XXXXX

         (Doc. 122-1 at 5). XXXXX (Doc. 122-1 at 5). XXXXX (Doc. 122-1 at 6). XXXXX (Doc. 122-1 at 6). XXXXX (Doc. 122-1 at 7). XXXXX (Doc. 122-1 at 7). XXXXX (Doc. 122-1 at 8). XXXXX (Doc. 122-2 at 28).

         XXXXX (Doc. 122-2 at 32). XXXXX (Doc. 122-2 at 32) XXXXX (Doc. 122-3 at 2) XXXXX XXXXX[4]

          XXXXX (Doc. 122-2 at 13-14). XXXXX (Doc. 122-2 at 15). XXXXX .

         II. CDT Campaigns

         XXXXX Defendant then tasks its CDT members with contacting existing customers. Those contacts are made through XXXXX (Doc. 123-1 at 7). XXXXX .

         Defendant used the following criteria to compile the customer list for the XXXXX (Doc. 122-1 at 79). Neither party has explained how these criteria were applied in detail. Thus, it is unclear what aspect of each criteria, such as XXXXX was deemed relevant for purposes of this campaign. As for the XXXXX campaign, Defendant could not locate the criteria used “to generate the customer contacts lists for the XXXXX (Doc. 122-1 at 75). But given Defendant's general practices, Defendant must have applied specific criteria to generate the list of customers that CDT members would attempt to speak with under that campaign.

         During each of the campaigns, Defendant's automated dialing system placed calls to the selected numbers. Defendant is adamant that these campaigns were not telemarketing. In making this claim, Defendant has to make a series of rather dubious assertions. Defendant first states that the XXXXX (Doc. 123-1 at 8). According to Defendant, just because the two relevant campaigns were named XXXXX and XXXXX does not mean the campaigns actually involved XXXXX or XXXXX Defendant claims the names are effectively irrelevant because it XXXXX (Doc. 123-1 at 8). It is, of course, possible that Defendant decided to refer to the campaigns as XXXXX and XXXXX campaigns even though the campaigns were not aimed at XXXXX . But Defendant does not offer any explanation why it would use unnecessarily confusing names for the campaigns.

         After disputing the relevance of the campaigns' names, Defendant next offers a claim that XXXXX (Doc. 123-1 at 8). XXXXX (Doc. 123-1 at 8). XXXXX (Doc. 123-1 at 8). The problem with these post- hoc explanations of the XXXXX campaigns is that the explanations are in significant tension with XXXXX .

         As pointed out earlier, XXXXX (Doc. 122-1 at 6). XXXXX (Doc. 122-1 at 6). If the XXXXX campaigns were, in fact, XXXXX Overall, Defendant's view of the calling campaigns as involving XXXXX is difficult to square with the underlying evidence.

         III. Calls to Plaintiff and Procedural History

         Plaintiff received two calls on his cellular phone from CDT members. On January 27, 2016, Plaintiff received a call in connection with the XXXXX Defendant has provided a transcript of that call:

Plaintiff: This is Jason.
CDT Member: Hey, Jason. How's it going? This is Jordan at GoDaddy.
Plaintiff: Good. Is this a sales call?
CDT Member: Well, we're calling about some products you have so I mean, however you want to take it.
Plaintiff: I'm not interested if it's a sales call. If domain names are expiring or something like that -- CDT Member: Well, you may be interested in - just so you know the call may be recorded or retained for quality and training purposes. We're calling in reference to the restore fee you had to pay last year on your hosting plan. We wanted to let you know that we do offer site backups now on your hosting plan so that we can start backing up your content for you on our end. And if you ever have a situation where a hosting plan expired or a site got hacked or anything like that we could restore the copies of it.
Plaintiff: I'm good. I appreciate the call.
CDT Member: Not a problem. Like I said, we just want to make sure you know it's available to you so you don't have to pay $150 next time.
Plaintiff: Alright. Thank you.
CDT Member: Bye now.

(Doc. 117-1 at 18).

         Plaintiff was also contacted on May 6, 2016, pursuant to the XXXXX campaign. The transcript of that call is as follows:

CDT Member: Hello. This is George with GoDaddy looking for Jason.
Plaintiff: Yep.
CDT Member: Hello Jason. I'm business consulting here at GoDaddy and trying to do a review here on your account. I do have to mention this call may be recorded and retained for quality and training --
Plaintiff: Is this a sales call?
CDT Member: Well, it's actually - we go over the account just to make sure that you have everything you need and you're not paying for something that's not needed.
Plaintiff: I'm good. Thank you.
CDT Member: And while I'm getting a billing too [end of recording].

(Doc. 117-1 at 17).

         Shortly after receiving those two calls, Plaintiff filed this suit in the Southern District of Alabama. (Doc. 1). The original complaint proposed a veiy broad class definition that, in general, sought to cover "[a]ll persons within the United States" who, during the two years preceding the filing of the complaint, received an advertising or telemarketing call on a cellular telephone line from Defendant. (Doc. 1 at 5). Defendant filed its answer and, shortly thereafter, filed a motion to transfer venue to Arizona. (Doc. 9, 17). Plaintiff did not oppose the transfer and the case was transferred to Arizona in November 2016. (Doc. 22).

         After arriving in Arizona, the Court adopted the parties' proposed discovery schedule. That schedule allowed Plaintiff a substantial period of time for discovery related to class certification and contemplated a "shorter time frame in which to complete any merits discovery, as necessary." (Doc. 35 at 7). During the class certification discovery period Plaintiff amended his complaint. (Doc. 75). The amended complaint proposed a slightly narrower class definition than what was proposed in the original complaint. After multiple extensions, the parties completed class certification discovery and Plaintiff filed his certification motion.

         Plaintiffs motion for class certification proposes a narrower class definition than what he had proposed in his complaint and amended complaint. Plaintiff ...

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