United States District Court, D. Nevada
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For Flemming Kristensen, Plaintiff: David Justin Dale, John C. Ochoa, Ryan David Andrews, LEAD ATTORNEYS, PRO HAC VICE, Edelson P.C., Chicago, IL; John Benedict, LEAD ATTORNEY, Law Offices of John Benedict, Las Vegas, NV; Rafey S Balabanian, LEAD ATTORNEY, PRO HAC VICE, Edelson McGuire, LLC, Chicago, IL; Evan M. Meyers, PRO HAC VICE, Edelson McGuire LLC, Chicago, IL.
For Credit Payment Services Inc., formerly known as MYCASHNOW.COM Inc., Defendant: Gregory T. Wolf, Steven Martin Aaron, LEAD ATTORNEYS, Dentons U.S. LLP, Kansas City, MO; Martin L. Welsh, LEAD ATTORNEY, Law Office of Hayes & Welsh, Henderson, NV.
For Enova International, Inc., Defendant: Brian Patrick O'Meara, LEAD ATTORNEY, McGuireWoods LLP, Chicago, IL; Dan R Waite, LEAD ATTORNEY, John E. Bragonje, Lewis Roca Rothgerber, LLP, Las Vegas, NV; Steven Martin Aaron, Dentons U.S. LLP, Kansas City, MO.
For Pioneer Financial Services, Inc., Defendant: Chad R. Fears, LEAD ATTORNEY, Snell & Wilmer, LLP, Las Vegas, NV; James M. Humphrey, IV, LEAD ATTORNEY, PRO HAC VICE, Polsinelli PC, Kansas City, MO; Robert V Spake, LEAD ATTORNEY, PRO HAC VICE, Polsinelli, Kansas City, MO; Russell S. Jones, Jr., LEAD ATTORNEY, Polsinelli P.C., Kansas City, MO; Steven Martin Aaron, Dentons U.S. LLP, Kansas City, MO.
For Leadpile LLC, Defendant: Kathryn Ann Reilly, LEAD ATTORNEY, PRO HAC VICE, Husch Blackwell LLP, Denver, CO; Michael K. Alston, Ryan W. Mitchem, LEAD ATTORNEYS, PRO HAC VICE, Husch Blackwell LLP, Chattanooga, TN; Patricia Lee, Hutchison & Steffen, Las Vegas, NV; Steven Martin Aaron, Dentons U.S. LLP, Kansas City, MO.
For Click Media LLC, doing business as Net1Promotions LLC, Defendant: Jeffrey M. Rosenfeld, LEAD ATTORNEY, PRO HAC VICE, Kronenberger Rosenfeld, LLP, San Francisco, CA; Karl S. Kronenberger, Virginia A Sanderson, LEAD ATTORNEYS, PRO HAC VICE, Kronenberger Burgoyne, LLP, San Francisco, CA; John H. Gutke, Fox Rothschild LLP, Las Vegas, NV.
ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.
Order Denying Motions to Dismiss and Granting Motion for Class Certification (Dkt. Nos. 65, 67, 113)
Flemming Kristensen (" Kristensen" ) filed a class action claiming that Credit Payment Services (" CPS" ), a payday lender formerly known as MyCashNow.com, marketed its services to him by causing its agents to send an unauthorized text message to his cell phone. The alleged text message stated:
DO YOU NEED UP TO $5000 TODAY?
EASY QUICK AND ALL ONLINE AT:
24 MONTH REPAY, ALL CREDIT OK
REPLY STOP TO END 
The Complaint alleged that the website in the text message--www.lend5k.com--automatically redirected to websites owned and operated by CPS and/or its agents who promoted CPS's payday loan products. Upon the approval of a completed loan application, customers received a loan agreement with a truth-in-lending disclosure which identified CPS's MyCashNow.com entity as the lender. Kristensen further alleged that CPS and/or its agents sent text messages using a dedicated telephone number and automated dialing equipment, and that he did not consent to receive the above text message. Kristensen claims this conduct violated 47 U.S.C. § 227(b)(1)(A)(iii), a subsection of the federal Telephone Consumer Protection Act of 1991.
In February 2013, the Court denied CPS's motion to dismiss and granted Kristensen's motion to amend the Complaint to name additional defendants. In March 2013, Kristensen timely filed his First Amended Class Action Complaint (the " FAC" ). He added four defendants: Enova International, Inc. (" Enova" ), Pioneer Financial Services, Inc. (" Pioneer" ), LeadPile LLC (" LeadPile" ), and ClickMedia LLC, d/b/a Net1Promotions LLC (" Click Media" ) (collectively with CPS, the " Defendants" ).
Kristensen alleges that, like CPS, Enova and Pioneer are short-term, payday lenders (collectively, the " Lender Defendants" ). He contends that in October 2010, if not before, the Lender Defendants contracted with LeadPile to generate customers. LeadPile, in turn, allegedly contracted with various companies, including Click Media, to generate leads and drive web traffic to Defendants' websites. Next, Click Media allegedly " directed" various unnamed " affiliate marketers to transmit en masse text messages containing 'links' that direct[ed] consumers to various websites operated by Defendants and/or their agents." 
Kristensen asserts that " [w]hen a customer visits one of these websites, he or she is automatically redirected to websites controlled by Click Media, where consumers begin the loan application process in order to receive loans directly from [the Lender Defendants]."  Kristensen next asserts that he received the above text message in December 2011 from the phone number: 13305646316. He again alleges that Click Media owns the website " www.lend5k.com," and he newly alleges that Click Media also owns the website to which " www.lend5k.com" automatically redirects: " https://thesmartcreditsolution.securelinkcorp.com."  When a consumer applies for a loan on this latter site, " the consumer is forwarded to a website owned and operated by . . . LeadPile, who then matches each customer with specific lenders, including [the Lender Defendants]." 
Kristensen alleges that Defendants sent the above text message to him using " equipment that had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator to dial such numbers."  " These
text calls were made en masse through the use of a dedicated telephone number without the prior express of [Kristensen] and the other members of the [purported] Class to receive such wireless spam." 
The FAC pleads the same sole claim for relief as the Complaint: violation of 47 U.S.C. § 227(b)(1)(A)(iii). Kristensen seeks the following relief: (1) an order certifying the Class as defined in the FAC;  (2) actual and/or statutory damages; (3) an injunction requiring Defendants to cease all wireless spam activities; and (4) costs and reasonable attorney's fees.
Click Media has moved to dismiss the FAC under Rule 12(b)(6) on the basis that Kristensen has insufficiently pled that either Click Media or its purported agents sent the text message to him. LeadPile makes substantially similar arguments in its motion to dismiss. Kristensen responded that (1) the ordinary rules of agency do not apply to vicarious liability under the TCPA; rather, a defendant is liable if a text message was sent on its behalf such that it received some benefit from the text message; and (2) even if the ordinary rules of agency apply, the TCPA claim survives because the FAC's factual allegations support a reasonable inference that the text message to Kristensen was sent by agents of Click Media and LeadPile, respectively.
One week after submitting his response, Kristensen filed a notice of supplemental authority. He calls the Court's attention to the Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules released by the Federal Communications Commission on May 9, 2013. Broadly put, the 2013 FCC Ruling represents and explains the FCC's determination that vicarious liability under 47 U.S.C. § 227(b) is governed by federal common law principles of agency. The FCC issued this document after a notice-and-comment period in which various interested parties submitted comments and replies to those comments. Kristensen relies on the 2013 FCC Ruling to assert that federal common law agency principles apply instead of state agency laws, and that the consumer need not provide proof of vicarious liability at the time he files his complaint. Kristensen is correct on both points. However, although proof is not required at the pleading phase because all well-pleaded allegations in a complaint are deemed true, those allegations must nonetheless support a plausible claim for relief.
Kristensen subsequently filed a motion
for class certification. This Order resolves the two motions to dismiss and the class certification motion.
A. Motions to Dismiss
1. Legal Standard -- Fed.R.Civ.P. 8, 12(b)(6)
A properly pleaded complaint must provide a " short and plain statement of the claim showing that the pleader is entitled to relief."  While Rule 8 does not require detailed factual allegations, it demands more than " labels and conclusions" or a " formulaic recitation of the elements of a cause of action."  " Factual allegations must be enough to rise above the speculative level."  To survive a motion to dismiss, a complaint must " contain enough facts to state a claim to relief that is plausible on its face." 
District courts must apply a two-step approach when considering motions to dismiss. First, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences from the complaint in the plaintiff's favor. Legal conclusions, however, are not entitled to the same assumption of truth even if cast in the form of factual allegations. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has " alleged--but it has not shown--that the pleader is entitled to relief."  When the claims have not crossed the line from conceivable to plausible, the complaint must be dismissed. " Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the [district] court to draw on its judicial experience and common sense." 
2. Legal Standard -- Telephone Consumer Protection Act
In pertinent part, the TCPA provides:
It shall be unlawful for any person . . . to make any call (other than a call made . . . with the prior express consent of the called party) using any automatic ...