United States District Court, S.D. New York
EDWARD ZYBURO, on behalf of himself and all others similarly situated, Plaintiff,
NCSPLUS, INC., Defendant
For Edward Zyburo, on behalf of himself and all similarly situated, Plaintiff: Domenico George Minerva, LEAD ATTORNEY, Peter George Safirstein, Morgan & Morgan, P.C., New York, NY; Geoffrey Edward Parmer, LEAD ATTORNEY, PRO HAC VICE, Geoffrey Parmer, Pa, Tampa, FL; John A. Yanchunis, LEAD ATTORNEY, PRO HAC VICE, David Patrick Mitchell, PRO HAC VICE, Morgan & Morgan, P.A., Tampa, Fl; William Peerce Howard, LEAD ATTORNEY, PRO HAC VICE, Morgan & Morgan, Tampa, FL.
For NCSPLUS, Inc., Defendant: Mark Krassner, LEAD ATTORNEY, Law Office of Mark Krassner, New York, NY; Nicole Marie Strickler, Messer, Stilp & Strickler, Chicago, IL.
For NCSPLUS, Inc., Counter Claimant: Mark Krassner, LEAD ATTORNEY, Law Office of Mark Krassner, New York, NY.
For Edward Zyburo, on behalf of himself and all similarly situated, Counter Defendant: Domenico George Minerva, LEAD ATTORNEY, Peter George Safirstein, Morgan & Morgan, P.C., New York, NY; Geoffrey Edward Parmer, LEAD ATTORNEY, Geoffrey Parmer, Pa, Tampa, FL; William Peerce Howard, LEAD ATTORNEY, Morgan & Morgan, Tampa, FL; David Patrick Mitchell, PRO HAC VICE, Morgan & Morgan, P.A., Tampa, FL.
JED S. RAKOFF, United States District Judge.
This is a putative class action brought under the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227 et seq., which prohibits certain kinds of telephone solicitations without the recipient's consent. Plaintiff alleges that the defendant repeatedly called his cell phone using an automated telephone dialing system without his consent, including after plaintiff had informed the defendant that he was not the party the defendant was attempting to reach and had requested to be placed on the defendant's " do not call" list.
On August 1, 2014, plaintiff moved to certify a class consisting of all persons in the United States whose cellular telephones were called by NCSPlus Inc. using an automatic telephone dialing system with the capacity to store or produce telephone numbers, including, but not limited to, an automated dialing machine, auto-dialer or predictive dialer, and/or utilizing an artificial or prerecorded voice, without such persons' prior express consent, between August 31, 2008 and August 31, 2012 (hereinafter, " Class" ), excluding the defendant, its officers, employees and assigns, and the Court and its employees. According to plaintiff's motion for class certification, discovery has revealed 146,879 unique, identifiable cellular telephone numbers that the defendant called during the class period. Plaintiff maintains that each of the defendant's violations of the TCPA entitles each injured party to statutory damages under the TCPA in the amount of $500 per violation and up to $1,500 per knowing or willful violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).
Defendant disputes class certification, primarily on two grounds. First, defendant alleges that plaintiff Edward Zyburo has failed to demonstrate that he is sufficiently familiar with the facts of this case to satisfy the adequacy requirement of Rule 23(a). Second, defendant argues that because many of the proposed class members allegedly provided the defendant with prior express consent, the Rule 23(a) requirements of commonality and typicality, and the Rule 23(b) requirements of predominance and ascertainability, have not been met. Additionally, though less vociferously, defendant argues that plaintiff has not established Article III standing sufficient to sustain a class action; that plaintiff's " willfulness" claim is inappropriate for class resolution; and that the superiority requirement of Rule 23(b) is not met. After full briefing, oral argument, and an evidentiary hearing with respect to the adequacy of plaintiff Edward Zyburo, the Court rejects each of these arguments and grants plaintiff's motion to certify the class.
First, the adequacy of Edward Zyburo as lead plaintiff is perhaps the most challenging question in this certification. Admittedly, Zyburo displayed poor memory regarding the posture and details of this litigation at the time of his evidentiary hearing, see, e.g., Transcript dated 9/9/2014 (" Tr." ) at 22:24-24:11), and deposition, see, e.g., Plaintiff's Ex. G (Zyburo Dep.) at 33:22-34:22, 38:14-17, 38:18-20, 38:21-23, 49:5-7, 52:1-5, 62:5-10. However, Zyburo is also a savvy businessman, who previously worked as a real estate broker and had obtained various industry licenses, Tr. at 2:15-20, has experience with negotiations,
Tr. at 9:22-10:9, and fully understands the responsibilities he has as lead plaintiff, including that he " represent[s] the class" and that his attorneys " would have to explain to [him] that [any settlement] was a fair offer and why." Tr. at 8:8-12. See also Tr. 9:7-13 (" I would like to negotiate, thank you." ).
The Second Circuit has held that the adequacy requirement is satisfied with respect to the lead plaintiff in this kind of consumer case unless " plaintiff's interests are antagonistic to the interest of other members of the class." In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009). Indeed, " to defeat a motion for certification . . . the conflict must be fundamental." Id. (citation omitted). In contrast to class actions under the Private Securities Litigation Reform Act, here there are no heightened requirements or responsibilities for the appointed lead plaintiff. Despite Zyburo's occasional memory lapses, he has shown himself to be a fully capable lead plaintiff, and no fundamental conflicts exist between himself and the class. Like the rest of the class, Zyburo was called by NCSPlus Inc., allegedly ...