Caribbean Cruises Away From Class Certification in Illinois Federal Court

TCPA Connect

Caribbean Cruise Line—a frequent subject of this newsletter—sailed away from class certification in another putative Telephone Consumer Protection Act (TCPA) class action, successfully persuading a federal judge in the Northern District of Illinois that the plaintiff was an inadequate class representative and that individual issues predominated over common ones.

In Gordon v. Caribbean Cruise Line, Inc., plaintiff Richard Gordon—a class action plaintiffs’ attorney himself, though represented by counsel in the litigation—filed a putative class action in 2014 against Caribbean as a consumer, based on an allegedly unsolicited text message he received. He claimed he received a message from Caribbean on July 28, 2014, stating, “You’ve been sent a pair of zero cost tickets to the Bahamas! Call 813.5151805.”

Caribbean told the court that it markets cruise vacation packages (including cruises, airline travel, hotel stays and car rentals) with online banner and pop-up ads. If a consumer clicked on the ad, he or she would be directed to the website of Adsource Marketing, Caribbean’s ad agency.

On the site, a consumer had the option of submitting his or her phone number, which served as consent (when a boxed was marked) to receive a subsequent telephone call or text message about a cruise package offer.

Gordon disputed that the marketing program worked as Caribbean described it, alleging that he never visited the Adsource website, provided his phone number or consented to receive text messages. He told the court that the defendant was aware that many people had complained about receiving unsolicited text messages.

Adsource supplied Caribbean with two “Lead Lists” of consumers who provided their contact information and had indicated their consent to receive text messages. Gordon argued that the dates, times and phone numbers that appeared on the lists were accurate but that the names were manufactured. For example, his phone number was associated with a person named “Stephanie Byrd,” although Gordon attested that he did not know anyone by that name.

A review of 50 other names on the list compared to public records led his class counsel to conclude that none of the names matched the numbers on the Lead List. He also alleged that Adsource’s record-keeping was generally unreliable.

Gordon moved to certify a class of plaintiffs. Caribbean objected, contending that Gordon did not satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3).

Denying certification, U.S. District Judge John Z. Lee determined that Gordon satisfied the need for ascertainability, numerosity, commonality and typicality. However, the plaintiff was tripped up by Rule 23(a)(4)’s adequacy requirement.

Caribbean first argued that Gordon was not an adequate representative based solely on his occupation as a class action attorney. “The Court holds that Plaintiff’s occupation as a class action attorney, in and of itself, does not call into question his adequacy as a class representative,” the court said.

However, his relationship with Katrina Carroll of Lite DePalma Greenberg (LDG), the putative class counsel, merited greater scrutiny, Judge Lee found.

Gordon and Carroll have jointly represented class action plaintiffs in five different matters, three of which remain pending; they also share an office suite, receptionist and fax machine. Gordon even sought employment with LDG. In addition, LDG’s office space is owned by a partnership involving Gordon’s cousin, to which the firm pays rent.

The attorneys live close to one another, their families socialize together and their daughters attend the same school. Gordon also serves as co-counsel with another attorney from LDG in cases pending before the court, and that attorney once referred a case to Gordon’s firm for a referral fee.

“Based upon this record, the Court finds that Plaintiff’s significant business ties to Carroll, [her partner] and LDG, as well as his close personal ties to Carroll, cast significant doubt upon his ability to put the interests of absent class members above that of class counsel,” the court held. “Accordingly, the Court finds that Plaintiff has failed to satisfy Rule 23(a)(4)’s adequacy requirement.”

Rule 23(b)(3) also posed a barrier to class certification, Judge Lee found. Common questions must predominate over any questions affecting only individual members to merit class certification, but in Gordon’s case, the defendant provided specific evidence attesting that Adsource sent text messages only to those who entered their names and phone numbers on the website’s landing page and checked the box indicating their consent to receive text messages via an autodialer.

“Plaintiff’s efforts to attack the probative value of the Lead Lists with data from individual putative class members only proves [Caribbean’s] point,” Judge Lee wrote. Given the evidence proffered by the defendant, “individualized factual inquiries will be necessary to determine whether the individuals on the Lead Lists did, in fact, consent, and those issues will predominate the litigation.”

Adding to the problem: Gordon “has not presented a viable approach based on common proof to establish the lack of consent with respect to the class,” the court added. “Accordingly, a multitude of mini-trials will be unavoidable.”

The court also found that the plaintiff failed to satisfy Rule 23(b)(3)’s superiority requirement.

“[D]ue to individualized factual inquiries required to adjudicate class members’ claims, there is a high likelihood that maintaining the litigation as a class action would be unmanageable,” the court said. “The Court has considered alternative procedural devices available in trying class actions, such as questionnaires and affidavits, but none are up to the task of providing [Caribbean] a meaningful opportunity to test the veracity of each putative class member as to the issue of consent. As such, the Court finds that the manageability problems of litigating the claims as a class action outweigh the benefits, and allowing this case to proceed as a class action would not efficiently or fairly adjudicate the controversy.”

To read the memorandum opinion and order in Gordon v. Caribbean Cruise Line, Inc., click here.

Why it matters: The plaintiff’s attempt to discredit the defendant’s record-keeping backfired, with the court finding the potential errors in the list of consumers contacted by Caribbean supported the argument that consent would need to be considered on an individual basis, precluding class certification. Moreover, this case shows that the adequacy of the class representative—while often challenged but rarely successfully—remains a viable defense to class certification, particularly where the named plaintiff is an attorney.