United States District Court, W.D. Washington, Seattle
ORDER ON MOTION FOR CLASS CERTIFICATION
MARSHA J. PECHMAN, Chief District Judge.
The Court has received and reviewed Plaintiffs' Motion for Class Certification (Dkt. No. 58), Defendants' Response in Opposition (Dkt. No. 98), Plaintiffs' Reply in Support (Dkt. No. 110), Defendants' Surreply Brief in Opposition (Dkt. No. 181), and all the relevant supporting documents and exhibits in this record, and rules as follows:
IT IS ORDERED that Plaintiffs' motion for class certification is DENIED.
This is a putative class action under the federal Do Not Call regulations pursuant to the Telephone Consumer Protection Act ("TCPA;" 47 U.S.C. § 227) and the Washington Telephone Solicitation Act ("WTSA;" RCW 80.36.390) challenging interstate telemarketing calls initiated by Defendant. Plaintiffs propose by their motion to certify the following three classes:
1. Washington Class ("WTSA Class"): All Washington persons who received two or more commercial solicitation calls from Defendant or its agents within a year of the date they asked not to be called again;
2. National Do-Not-Call Class ("NDNCR Class"): all persons registered on the National Do-Not-Call Registry who received more than one call from Defendant within any twelve-month period;
3. Internal Do-Not-Call Class ("IDNCR Class"): All persons who were on Defendant's Internal Do-Not-Call Registry because such persons had requested Defendant to stop calling, when the calls were received.
Pltf Mtn, p. 10.
The parties have fully briefed Plaintiffs' motion to certify the above classes. Additionally, in light of certain evidentiary problems and procedural irregularities, the Court has taken the unusual step of permitting Defendants to file a surreply to address evidence raised for the first time in Plaintiffs' reply brief.
Standard of Proof for Class Certification
Class certification is proper if and only if "the trial court is satisfied, after a rigorous analysis, " that Plaintiffs have met their burden under Rule 23. Wal-mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011)(emphasis supplied).
For reasons that will become obvious in the succeeding section, the Court discusses the issue of the standard of proof required for establishing each element required for class certification. While the Ninth Circuit has yet to enunciate an evidentiary benchmark in the area of proof of the elements of class certification,  this Court finds itself in need of such a standard and chooses to align itself with the emerging trend in other districts toward the adoption of a preponderance of the evidence standard for facts necessary to establish the existence of a class. See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008)("Today, we dispel any remaining confusion and hold that the preponderance of the evidence standard applies to evidence proffered to establish Rule 23's requirements."); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 307 (3d Cir. 2009); In re Mills Corp. Securities Litigation, 257 F.R.D. 101, 104 (E.D. Va. 2009); Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 234 (5th Cir. 2009); Wilkof v. Caraco Pharmaceutical Laboratories, Ltd., 280 F.R.D. 332, 338 (E.D. Mich. 2012); Messner v. Northshore University HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012); Walsh v. Principal Life Ins. Co., 266 F.R.D. 232, 240 n.7 (S.D. Iowa 2010); Local 703, I. B. of T. Grocery and Food Employees Welfare Fund v. Regions Financial Corp., 282 ...