ORDER DENYING CLASS CERTIFICATION AND OBJECTIONS AND MOTIONS TO STRIKE PLAINTIFF'S EXPERTS

WILEY Y. DANIEL, Senior District Judge.

I. INTRODUCTION

Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded "robocalls" received from Defendant DISH Network LLC ["DISH"] on his cellular telephone without his prior express consent. In his Class Action Complaint filed July 26, 2012, Plaintiff brings a claim on behalf of himself and all others similarly situated for violations of the Telephone Consumer Protection Act ["TCPA"]. Plaintiff alleges that DISH has also placed similar pre-recorded "robocalls" to the cellular telephone numbers of thousands of similarly situated persons without their prior express consent and that DISH has documented thousands of instances of such calls in a computer database called the "TCPA Tracker." Plaintiff seeks statutory damages, injunctive relief, and reasonable attorneys' fees and costs.

This Order addresses Plaintiff's Motion for Class Certification filed August 9, 2013. A response to the motion was filed on September 9, 2013, a reply was filed on October 4, 2013, a sur-reply was filed on February 7, 2014, and a response to the sur-reply was filed on February 28, 2014. An evidentiary hearing was held on the motion on March 19 and March 20, 2104. This Order also addresses DISH's objections and motions to strike the opinions and testimony of Plaintiff's experts offered in support of class certification.

Plaintiff originally sought to certify a class defined as:

and a sub-class defined as:

During the first day of the hearing on Plaintiff's motion, I expressed concern about certifying a large class of all persons called without consent because of the need to look at "millions and millions" of customer records, and asked Plaintiff to submit a proposed modified definition to address this concern and narrow the issues. (Tr. March 19, 2014 Hr'g, ECF No. 216, at 39-44.) I stated that "under no circumstance can I consider certifying a class if we are talking about having to look at millions and millions of calls." (Id. at 44:2-4.) Plaintiff then submitted a modified class definition comprised of:

After receipt of this revised class definition, DISH continued to object to the class definition. Among other things, it argued that the amendment to the class definition to include people who were "identified in DISH's records as being called after they appeared on DISH's Do Not Call List" would make the class unmanageable as it would encompass approximately 7 million DISH customers. (Tr. March 20, 2014 Hr'g, ECF No. 217, at 215-217.) I ordered the parties to meet and confer as to the class definition and the documents Plaintiff sought regarding same. (Id. 224.)

Plaintiff has now clarified that section (e) of the class definition refers only to those do-not-call requests that DISH refers to as "suppression requests", rather than all do-not-call-requests such as those that relate to telemarketing calls. (See Pl.'s Supplemental Mem. Regarding Class Definition and Ex. 1 thereto, ECF No. 219.) Plaintiff asserts that his revision to section (e) to encompass only suppression requests greatly reduces the number of class members at issue. Thus, Plaintiff now seeks certification of the following class:

At the hearing, I provisionally granted Plaintiff's class certification motion subject to approving an order on the motion, and ordered Plaintiff to file a proposed order by April 7, 2014. DISH was ordered to file a response to the proposed order by April 21, 2014. (See Minute Order of March 20, 2014, ECF No. 215.) On March 31, 2014, I issued an Order Clarifying Courtroom Minutes in which I stated:

(ECF No. 218.)

On April 7, 2014, Plaintiff filed his Supplemental Memorandum Regarding Class Definition as well as his [Proposed] Order Granting Plaintiff's Motion for Class Certification. On that same date, DISH filed a Brief Regarding Plaintiffs' [sic] Newest Proposed Amended Class Definition. On April 21, 2014, DISH filed a Response to Plaintiff's Supplemental Memorandum and Objections to Plaintiff's Proposed Order Granting Plaintiff's Motion for Class Certification. On April 29, 2014, without waiving its objection to the ruling granting the motion for class certification or stipulating that certification of a class is appropriate, DISH filed a "Proposed Class Definition that Reflects the Court's Instructions and Statement of Intent at the March 19 and 20, 2014 Hearing on Plaintiff's Motion for Class Certification." Its proposed definition is:

(ECF No. 235, Attach. A.)

From the foregoing, the issue of class certification and the proposed order to be issued as to same as well as the class definition have been thoroughly and exhaustingly briefed. I have reviewed all the arguments, evidence and submissions. While I was initially inclined to, and indeed, provisionally granted Plaintiff's class certification motion subject to approval of an order, I now find, for the reasons discussed below, that

II. ANALYSIS

A. General Requirements for Class Certification

"The class action is `an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2550 (2011). Fed. R. Civ. P. 23(a) "states four threshold requirements applicable to all class actions: numerosity (a `class [so large] that joinder of all members is impracticable'); commonality (`questions of law or fact common to the class'); typicality (named parties' claims or defense `are typical . . . of the class'); and adequacy of representation (representatives `will fairly and adequately protect the interests of the class')." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). Additionally, a party seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Id. at 614. Finally, although not specifically mentioned in Rule 23, there must be an ascertainable class. See Edwards v. Zenimax Media, Inc., No. 12-cv-00411-WYD, 2012 WL 4378219, at *4 (D. Colo Sept. 25, 2012); Agne v. Papa John's Int'l, Inc., 286 F.R.D. 559, (W.D. Wash. 2012) ("In addition to the Rule 23(a) requirements, courts have also recognized that ensuring the members of the class can be ascertained with `reference to objective criteria' is an implicit requirement for class certification) (quoting Newberg on Class Actions § 3:1).

The plaintiff bears the "strict" burden of proving that the requirements of Rule 23 have been met. Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725

F.3d 1213, 1218 (10th Cir. 2013); Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006). The court is required to engage in a "rigorous analysis" into whether the requirements of Rule 23 are satisfied. Dukes, 131 S. Ct. at 2551. While Plaintiff argues that the court must generally accept the substantive, non-conclusory allegations of the complaint as true, the Supreme Court recently clarified that "Rule 23 does not set forth a mere pleading standard." Id. Instead, "[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule. . . ." Id. Thus, "sometimes it may be necessary for the court to probe behind the pleadings before coming to reset on the certification question,'. . . ." Id. (quotation omitted); see also Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012) (Dukes verified that the district court should not merely presume that the plaintiffs' allegations in the complaint are true for the purposes of class motion without resolving factual and legal issues.").

I find that the dispositive issues at this juncture of the case are whether Plaintiff's current class definition is adequate or sufficiently defined and whether it is overbroad. The issue of adequacy must generally be determined before the court addresses the prerequisites of Rule 23(a). Kelecseny v. Chevron, U.S.A., Inc., 262 F.R.D. 660, 667 (S.D. Fla. 2009). "A class is sufficiently defined if it is `administratively feasible for the court to determine whether a particular individual is a member.'" Edwards, 2012 WL 4378219, at *4 (citing Davoll v. Webb, 160 F.R.D. 142, 143 (D. Colo. 1995)). "`Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual factual inquiry.'" Carrera v. Bayer Corp., 727 F.3d 300, 307-08 (3rd Cir. 2013) (quotation omitted). "If the members of the class can be ascertained by reference to objective criteria, then the class is adequately defined." Edwards, 2012 WL 4378219, at *4; Anderson v. Merit Energy Co., Nos. 07-cv-00916, 07-cv-1025, 2008 WL 2484187, at *2 (D. Colo. June 19, 2008) (citing Fed. Judicial Center, Manual for Complex Litigation (4th ed. 2004) § 21.222)); see also 1 Rubenstein, Newberg on Class Actions § 3:3 (5th ed. 2013) (the focus is "on the question of whether the class can be ascertained by objective criteria").

As further explained by another district court addressing a TCPA class action:

Agne, 286 F.R.D. at 566. Thus, the class "must meet a `minimum standard of definiteness which will allow the trial court to determine membership in the proposed class.'" Id. (quotation omitted).

If the court must undertake individualized inquiries in order to determine whether a person is a member of the class, the class is not appropriate. See Davoll, 160 F.R.D. at 146. Thus, the Third Circuit noted recently "that `[i]f class members are impossible to identify without extensive and individualized fact-finding or mini-trials,' then a class action is inappropriate." Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3rd Cir. 2013) (quoting Marcus v. BMW of N. Am., LLD, 687 F.3d 582, 593 (3rd Cir. 2012) and citing William B. Rubenstein, Newberg on Class Actions § 3:3 (5th ed. 2011) ("Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual factual inquiry.")). The Third Circuit "noted that other courts have gone so far as to hold `that where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails.'" Id. (quoting Marcus, 687 F.3d at 593).

The "rigorous analysis" applicable to Rule 23's requirements apply to the ascertainability requirement. Carrera, 727 F.3d at 306. "`A party's assurance to the court that it intends or plans to meet the requirements [of Rule 23] is insufficient.'" Id. (quoting In Re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318 (3rd Cir. 2008)). Thus, "[]a plaintiff may not merely propose a method of ascertaining a class without any evidentiary support that the method will be successful." Id. This is because "`[a] critical need' of the trial court at certification is to determine how the case will be tried,'. . . ." Id. (quotation omitted).

Related to ascertainability are problems with overbreadth of the class. Messner v. Northshore Univ.- Healthsystem, 669 F.3d 802, 824-25 (7th Cir. 2012). A class is overbroad, and should not be certified, if it includes "a great number of members who could not have been harmed by the defendant's allegedly unlawful conduct." Id. at 824. There is a necessity of rigorous analysis on this issue "because of the `potential unfairness to the class members bound by the judgment if the framing of the class is overbroad.'" Trevizo, 455 F.3d at 1163 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)).

I now turn to the most recent class definition that Plaintiff proposes. He seeks to certify a class of those individuals to whom DISH placed robocalls who were either not a DISH customer or who previously asked DISH to cease making such calls through a suppression request. Plaintiff argues that it is administratively feasible to determine whether any particular individual meets these criteria because DISH's business records identify its customers and the telephone numbers robocalled by its dialer.

Plaintiff also identifies a methodology for ascertaining the class members. ([Proposed] Order Granting Pl.'s Mot. Class Certification, ECF No. 220, at 9-11.) He relies on the ability of his expert witness Robert Biggerstaff to query DISH's records and the ability of various vendors to scrub the list of telephone numbers at issue to identify which of those were assigned to cellular telephone service at the time of the calls.

Further, as to the portion of the class that are noncustomers who were robocalled, Plaintiff proposes that where the TCPA Tracker identifies the first and last name of the complainant, that person will be a class member. Where the first and last name are not identified, he proposes subpoenaing telephone carriers for the telephone numbers and directing them to (1) identify the name, address, and social security number of the subscriber to that number at the time of the calls, and (2) identify how many separate telephone lines were on that account. Plaintiff will then utilize A.B. Data to identify other addresses associated with those persons and the names of other household members at those addresses during the relevant time period. Thereafter, DISH's customer database will be queried for those names, addresses, and social security numbers—any matches will be excluded from the class as a potential customer of DISH and the remaining persons will be class members. Should the Court require a final cross-check on the reliability of the methodology after a finding of liability, Plaintiff asserts it could order that notice be provided to those class members who had more than one telephone line that would require them to access a website and provide their cellular telephone number at the time of the calls to ensure they are the person robocalled by DISH rather than a person sharing a family plan with such a person.

DISH objects to the newly revised class definition, arguing that it has the same problems as the original class definition and is compounded by new ones. DISH asserts that the only calls that can be in Plaintiff's class are anomalies—calls made by mistake because of data entry or customer error, and that it is illogical and unprecedented to suggest a class of anomalies is ascertainable through objective, reliable proof on a class-wide basis. DISH also objects to the methodology proposed by Plaintiff for ascertaining the class.

Turning to my analysis, I find that the class is not administratively feasible, and thus not ascertainable. Instead of limiting the class definition to the TCPA Tracker Dataset of 27,000+ individuals as discussed at the hearing and which I indicated might be a manageable class, Plaintiff has purposely kept the class definition broad, including in section (d) of the class those "who were not DISH customers at the time of the calls, such as persons who were identified in the TCPA Tracker." Thus, while Plaintiff referenced the TCPA Tracker in his definition, he did not limit the class to people within that Tracker as discussed at the hearing on class certification. He also added an entirely new class consisting of both customers and noncustomers of DISH who were called after making a suppression request, even though Plaintiff has not presented any evidence that anyone has ever been called after making a suppression request. Plaintiff also removes "consent" from the definition of the class, meaning as to the sub-class in section (d) that the class would include all persons called with their consent.

DISH asserts that the proposed class definition, as revised, will require that all of DISH call records and all of its 25 million customer accounts be reviewed to find potential class members. DISH argues, and I agree, that Plaintiff asks to impose an enormous and disproportionate burden on DISH—to notify and obtain consent under the Satellite Television Extension and Localism Act ("STELA"), 47 U.S.C. § 338(i)(4)(A)2, from all of its 25 million customers to produce and allow Plaintiff's counsel and his experts to search through 600+ million calls and account records to try and find potential class members. Indeed, given the way the subclass is defined in section (e), DISH asserts that there is no other means of trying to figure out whether a number was called. Plaintiff has thus not heeded my statement at the hearing that "under no circumstance can I consider certifying a class if we are talking about having to look at millions and millions of calls." (Id. at 44:2-4.)3

Based on the foregoing, I find that the proposed class is not administratively feasible because identifying the class members is not a manageable process and would require extensive individual factual inquiry. See Carrera, 727 F.3d at 307-08. The inquiry into factual records to determine class members is "so daunting as to make the class definition insufficient." Agne, 286 F.R.D. at 566.

Also, as to the sub-class proposed in section (d), Plaintiff's methodology for ascertaining class members presumes that a person identified in DISH's records as "not a customer" is a class member, at least as to persons who have provided their full name to DISH. (See [Proposed] Order Granting Pl.'s Mot. Class Certification, ECF No. 220, at 10.)4 I find that this presumption is not supported by the evidence, rendering the class overbroad and requiring individualized factual inquiry into which of these persons is actually a class member. As DISH points out, the 600+ million phone numbers it called were provided by its customers, i.e., every customer consented to be called at the number he/she provided and the calls made by DISH were informational calls. DISH asserts that there are many different scenarios in which the numbers provided to it may have been associated with someone other than the named account holder on DISH records. This is borne out in DISH's records that reflect households subscribe to DISH under one named account holder for a family, friends or roommates, all of whom may have provided consent to be called. (ECF No. 83-5 [Metzger Aff.] at ¶ 18(c).)

Thus, I am now persuaded that the fact DISH had consent to call a particular number does not turn on whether the called party was the actual, named customer in DISH's records. (ECF No. 83 [Picchione Aff.] ¶¶ 4, 14-15—DISH makes informational calls to the numbers provided by its customers and agents do not record or investigate who is the user/subscriber of a phone). Although invited to do so by DISH, Plaintiff refused to exclude household members and familial relationships from the new definition and has made no suggestion as to how to exclude consent from a broader class of non-customers, even though his expert Robert Biggerstaff admitted that such consenting persons cannot be in the class. (See DISH's Objections to Pl.'s Proposed Order Granting Pl.'s Mot. Class Certification, Ex. A [Biggerstaff Dep.] at 103:9-105:17; Ex. B [Mar. 19, 2014 Hr'g Tr.] at 93:6-95:24.)5 Again, this makes the class overbroad and unascertainable, as it cannot be determined from the objective criteria of DISH's records. The sub-class is made even more overbroad because it now includes persons called with their consent. See Gannon v. Network Tel. Services, Inc., No. 12-9777-RGK, 2013 WL 2450199, at *2-3 (C.D. Cal. June 5, 2013) (finding in a situation where the defendant provided evidence that some of the putative class members may have provided consent to text messages that the proposed TCPA class was "unascertainable and unidentifiable" because the class definition would require individualized inquiry into whether the class members consented); Vigus v. S. Illinois Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 235-35 (S.D. Ill. 2011) (finding in TCPA case that class was not sufficiently defined and was overbroad where plaintiff, who was called because he had a telephone number that previously belonged to a customer of the defendant, sought to certify a class that included "a substantial number of people who voluntarily gave their telephone numbers" to the defendant, and determining who would be in a class narrowed to an appropriate size could not be done by reference to objective criteria applied class-wide and would be an unmanageable task").6

Based on the foregoing, I find that Plaintiff's Motion for Class Certification must be denied because the class is not sufficiently ascertainable and is overbroad. Accordingly, I need not address DISH's other objections to the class proposed by Plaintiff or the requirements of Rule 23.

I also agree with DISH that section (e) is an entirely new sub-class that was never proposed before.7 As DISH asserts, the new class amendment is not a minor modification. Plaintiff's proposal: (1) does not limit the class definition to the TCPA Tracker Dataset of 27,000+, (2) does not define "customer" (or suggest how such a group of calls will be identified), (3) deletes any reference to "consent", and (4) seeks to include in the class a new group of individuals that might have been called after requesting a number be suppressed8, without the benefit of legal briefing.

I acknowledge that I am not bound by the original proposed class definition. Davoll v. Webb, 194 F.3d 1116, 1146 (10th Cir. 1999) (courts have "broad discretion" to "modify the definition" of the class); In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004) ("holding plaintiffs to the plain language of their definition would ignore the ongoing refinement and give-and-take inherent in class action litigation, particularly in the formation of a workable class definition"). However, I am concerned that allowing a substantive revision to the class definition after the hearing and the briefing has concluded and without any discovery or discussion by Plaintiffs' experts of the methodology for ascertaining this class would be improper and prejudicial to DISH. See In re Urethane Antitrust Litig., 237 F.R.D. 440, 445 n.4 (D. Kan. 2006) (refusing to adopt revised class definition that "contains new verbiage that is arguably critical but was not proposed until such a late date (after plaintiffs submitted their reply brief and after the class certification hearing)" (emphasis in original)); Polo v. Goodings Supermarkets, Inc., 232 F.R.D. 399, 409 (M.D. Fla. 2004) (refusing to certify overbroad revised class definition proposed for first time in reply brief).

The question then becomes whether I should attempt to revise the class definition in some way to try to make the class ascertainable. Notably, if I were to limit the class as defined in section (d) to persons in the TCPA Tracker, Plaintiff would not be included in the class. Since he never called DISH to complain about calls, he was not a part of the TCPA Tracker. He also would not be a member of the other subclass in section (e) of the class definition, which is comprised of customers and non-customers that made a suppression request but may have been inadvertently called thereafter. See Labou v. Cellco Partnership, No. 13-844, 2014 WL 824225, at *4 (E.D. Cal. Mar. 3, 2014) ("Plaintiff, as a non-Verizon customer, presents different claims than that of Verizon customers. . . .")

Accordingly, a revision limiting the class to persons identified in the TCPA Tracker would not be appropriate as Plaintiff would lack standing to sue as a class representative. See Dukes, 131 S. Ct. at 2550 ("a class representative must a part of the class" he seeks to represent); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974) ("To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents"); Labou, 2014 WL 824225, at *4-5 (denying class certification where plaintiff sought to certify a TCPA class of customers and non-customers of Verizon who were called without consent because the claims of plaintiff as a noncustomer were not typical of the class of customers). As noted by another district court, whose reasoning I find persuasive:

Akerman v. Oryx Commc'ns, Inc., 609 F.Supp. 363, 377 (S.D.N.Y. 1984).

While DISH has proposed an alternative class definition, Plaintiff did not agree to that definition. (See ECF No. 221, Ex. D [Email from T. Sostrin to Z. Ikels] stating "the proposed class definition has never been limited only to people in TCPA Tracker.") Accordingly, I do not think it appropriate to consider the adequacy of DISH's proposed class definition or to sua sponte revise the class definition myself. Since Plaintiff is seeking class certification, he must be the one to propose an adequate class definition that is not overbroad. As stated in the Polo v. Goodings Supermarkets decision:

Id., 232 F.R.D. at 409.

Accordingly, Plaintiff's Motion for Class Certification is denied. However, this denial does not preclude Plaintiff from filing a new motion for class certification that proposes an ascertainable class supported by the evidence and a reliable methodology and that meets the requirements of Rule 23. Indeed, DISH acknowledges in connection with Plaintiff's latest class definition that the proper procedure for authorizing amended class definitions of this magnitude is to deny the motion but grant the plaintiff the opportunity to file a new Rule 23 motion. See, e.g., Donaca v. Dish Network, LLC, No. 11-cv-2910, 2014 WL 623396, at *4 (D. Colo. Feb. 18, 2014) (noting that the court denied certification of the class proposed in plaintiff's reply brief (of which the plaintiff was not a member) but granted the plaintiff leave to file a new motion for class certification); Naylor Farms v. Anadarko OGC Co., No. CIV-08-668, 2009 WL 8572026, at *3 (W.D. Okla. Aug. 26, 2009) (granting motion to strike third amended class definition that increased the scope of the class, where there was no evidence and where it would be unfair to defendants who had been defending based on second amended definition).

I now turn to DISH's objections and motions to strike the report, rebuttal report and testimony of Robert Biggerstaff, as well as objections and motions to strike the affidavit, rebuttal affidavit and testimony of Anya Verkhovskaya. These reports, affidavits and testimony were offered by Plaintiff's experts Robert Biggerstaff and Anya Verkhovskaya in support of Plaintiff's Motion for Class Certification. Since I have denied Plaintiff's class certification motion, I find that DISH's objections and motions to

strike as to these experts should be denied as moot. I note for Plaintiff's reference that if he proposes a new class definition in a new motion for class certification and intends to rely on his experts in support of same, he will need to file new reports and/or affidavits of these experts.

III. CONCLUSION

Based on the foregoing,

ORDERED that Plaintiff's Motion for Class Certification filed August 9, 2013 (ECF No. 61) is DENIED. It is

FURTHER ORDERED that the document entitled "Defendant DISH Network L.L.C.'s Objections and, in the Alternative, Motion to Strike the Report and Testimony of Plaintiff's Expert Robert Biggerstaff Offered in Support of Plaintiff's Motion for Class Certification" (ECF No. 76) is DENIED AS MOOT. It is

FURTHER ORDERED that the document entitled "Defendant DISH Network L.L.C.'s Objections and, in the Alternative, Motion to Strike the Affidavit and Testimony of Plaintiff's Expert Anya Verkhovskaya Offered in Support of Plaintiff's Motion for Class Certification" (ECF No. 78) is DENIED AS MOOT. It is

FURTHER ORDERED that the document entitled "Defendant DISH Network L.L.C.'s Objections and, in the Alternative, Motion to Strike the `Rebuttal' Affidavit of Plaintiff's Expert Anya Verkhovskaya Offered in Support of Plaintiff's Motion for Class Certification" (ECF No. 154) is DENIED AS MOOT. Finally, it is

ORDERED that the document entitled "Defendant DISH Network L.L.C.'s Objections and, in the Alternative, Motion to Strike the `Rebuttal' Report of Plaintiff's

Expert Robert Biggerstaff Offered in Support of Plaintiff's Motion for Class Certification" filed November 8, 2014 (ECF No. 155) is DENIED AS MOOT.