United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
Jason Bennett received calls on his cellular phone from
Defendant GoDaddy.com, 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
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. 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.
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
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).
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).
individual was hired for a position with the CDT,
XXXXX (Doc. 122-1 at 19).
XXXXX (Doc. 122-1 at 19).
122-1 at 3). XXXXX (Doc. 122-1 at 3).
XXXXX (Doc. 122-1 at 5). XXXXX
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).
(Doc. 122-2 at 32). XXXXX (Doc. 122-2
at 32) XXXXX (Doc. 122-3 at 2)
XXXXX (Doc. 122-2 at 13-14).
XXXXX (Doc. 122-2 at 15).
Defendant then tasks its CDT members with contacting existing
customers. Those contacts are made through XXXXX (Doc. 123-1 at 7). XXXXX .
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
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.
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 .
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
Calls to Plaintiff and Procedural History
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
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
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).
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.
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
Plaintiff: I'm good. Thank you.
CDT Member: And while I'm getting a
billing too [end of recording].
(Doc. 117-1 at 17).
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.
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 for class certification proposes a narrower class
definition than what he had proposed in his complaint and
amended complaint. Plaintiff ...