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Barani v. Wells Fargo Bank, N.A.

United States District Court, S.D. California

April 9, 2014

REZA BARANI, individually and on behalf of all others similarly situated, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.


GONZALO P. CURIEL, District Judge.

From December 18, 2008 to June 20, 2013, Defendant Wells Fargo sent unsolicited text messages to non-Wells Fargo customers in connection with its send/receive money product program. Plaintiff alleges that Wells Fargo violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., by sending text messages to non-Wells Fargo customers without their prior express consent, using an automatic telephone dialing system ("ATDS").

Plaintiff initiated this Action on December 18, 2012. The Complaint alleges (1) negligent violation of the TCPA; and (2) knowing and/or willful violation of the TCPA. Plaintiff's claims were brought on behalf of a class of individuals who are not Wells Fargo customers, yet received text messages on their cellular telephones from Wells Fargo, via an ATDS, in connection with its send/receive money product program, during the class period. Plaintiff sought $500 per negligent violation and $1500 per willful violation, as well as injunctive relief.

Presently before the Court is Plaintiff's Motion for Preliminary Approval of a Class Action Settlement and Certification of Settlement Class. (Docket No. 21.) Defendant does not oppose this Motion. (Docket No. 21.)


Once parties reach a settlement agreement prior to class certification, the court must "peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement." Stanton v. Boeing Co. , 327 F.3d 938, 952 (9th Cir. 2003). The court must (1) assess whether a class exists, and (2) determine whether the proposed settlement is "fundamentally fair, adequate, and reasonable." (Id.) (internal quotations omitted.) Here, the Court will first examine the propriety of the class certification, then the fairness of the Settlement Agreement, followed by the questions of Class Counsel and Class Notice.


A plaintiff seeking a Rule 23(b)(3) class certification must: (1) satisfy the prerequisites of Rule 23(a); and (2) satisfy the requirements of Rule 23(b)(3). Here, the Parties seek provisional certification for settlement purposes only of the following class: "The Class consists of all wireless phone subscribers and users within the United States of America, who received any text message/s from Defendant in connection with, or as a result of, its send/receive money product program, who were not customers of Defendant at the time the text/s were sent, which text messages were sent during the Class Period." (Settlement Agreement ("SA") § 2.08(A).) "Excluded from the Class are Defendant, their parent companies, affiliates or subsidiaries, or any employees thereof, and any entities in which any of such companies has a controlling interest; the judge or magistrate judge to whom the Action is assigned, and any member of those judges' staffs and immediate families." (SA § 2.08(b).)

A. Rule 23(a) Requirements

Rule 23 (a) establishes four prerequisites for class action litigation: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a); see also Stanton , 327 F.3d at 953. The Court will examine each prerequisite in turn.

1. Numerosity

The numerosity prerequisite is met if "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). In the present case, Wells Fargo has identified 76, 189 Class Members. (SA § 5.04.) Class Members are too numerous to be joined as plaintiffs in this Action. Accordingly, the numerosity requirement is met.

2. Commonality

The commonality requirement is met if "there are any questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). The commonality requirement is construed "permissively." Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1019 (9th Cir. 1998). Not all questions of law and fact need to be common, but rather "[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class." Id . In addition, commonality requires that class members "have suffered the same injury." Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2551 (2001).

Here, the proposed Class Members' claims stem from the same factual circumstances, in that Wells Fargo sent non-customers text messages; using an ATDS, without their prior express consent. There are also several common questions of law, including: (1) whether Wells Fargo negligently violated the TCPA; (2) whether Wells Fargo willfully or knowingly violated the TCPA; and (3) whether Wells Fargo had prior express consent for the text messages. Accordingly, the commonality requirement is met.

3. Typicality

Typicality requires that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). The Ninth Circuit interprets typicality permissively. Hanlon , 150 F.3d at 1020. The representative claims are "typical" if they are "reasonably co-extensive with those of absent class members, " though they "need not be substantially identical." Id .; see also Cal. Rural Leal Assistance, Inc. v. Legal Servs. Corp. , 917 F.2d 1171, 1175 (9th Cir. 1990). The named plaintiff must be a member of the class they seek to represent and they must "possess the same interest and suffer the same injury" as putative class members. Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 156 (1982) (internal quotations omitted). It is sufficient for the plaintiff's claims to "arise from the same remedial and legal theories" as the class claims. Arnold v. United Artists Theatre Cir., Inc. , 158 F.R.D. 439, 449 (N.D. Cal. 1994).

Here, Plaintiff's claims arise from the same factual basis as that of the class: text messages sent by Wells Fargo, to non-Wells Fargo customers, on their cellular telephones, via an ATDS, without their prior express consent. In addition, Plaintiff's claims are based on the same legal theory as that applicable to the class: that the text messages violated the TCPA. Wehner v. Syntex Corp. , 117 F.R.D. 641, 644 (N.D. Cal. 1987). Accordingly, the typicality requirement is met.

4. Adequacy of Representation

Representative parties must be able to "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). Representation is adequate if the plaintiff: (1) "[does] not have conflicts of interest with the proposed class" and (2) is "represented by qualified and competent counsel." Dukes v. Wal-Mart, Inc. , 509 F.3d 1168, 1185 (9th Cir. 2007). At the heart of this requirement is the "concern over settlement allocation decisions." Hanlon , 150 F.3d at 1020.

Plaintiff and Class Counsel have no conflicts of interest with other Class Members. For the purposes of settlement, Plaintiff's claims are typical of those of other class members. (Kazerounian Decl. ¶ 36; Swigart Decl. ¶ 30; Barani Decl. ¶ 7.) Plaintiff and the Class Members share the common goal of protecting and improving consumer and privacy rights. Plaintiff and Class Counsel have been prosecuting this action vigorously on behalf of the class. (Swigart Decl. ¶¶ 3-6.)

In addition, Class Counsel have experience prosecuting class actions relating to privacy and consumer rights, including TCPA action. (Id. ¶ 27.) Joshua B. Swigart was admitted to the State Bar of California in 2003 and is a founding partner at Hyde & Swigart. (Id. ¶ 25.) Mr. Swigart practices exclusively in the area of consumer rights litigation, primarily in the area of fair debt collections, defense of debt collections lawsuits, and class action litigation under the TCPA. (Id. ¶ 26.) Abbas S. Kazerounian was admitted to the State Bar of California in 2007. (Kazerounian Decl. ¶ 25.) He is a founding partner of Kazerouni Law Group, APC. (Id. ¶ 28.) Mr. Kazerounian has been appointed class counsel in several class actions brought under the TCPA. (Id. ¶ 32.) In addition, he has experience in commercial litigation and large-scale products liability litigation. (Id. ¶27.) Class Counsel are qualified to conduct this litigation.

For the reasons stated above, Plaintiffs have satisfied the prerequisites of Rules 23(a).

B. Rule 23(b)(3) Requirements

Rules 23(b)(3) requires the court to find that: (1) "the questions of law or fact common to class members predominate over any questions affecting only individual members" ("predominance"); and (2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy" ("superiority").

1. Predominance

The predominance inquiry tests "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Hanlon , 150 F.3d at 1022 (internal quotations omitted). This analysis requires that common questions of law and fact "present a significant aspect of the case and [that] they can be resolved for all members of the class in a single adjudication." Id . (Internal quotations omitted.) The relevant inquiry is whether issues "subject to generalized proof predominate over those issues that are subject only to individualized proof." Dilts v. Penske Logistics, LLC , 267 F.R.D. 625, 634 (S.D. Cal. 2010) (internal quotations and alterations omitted).

Here, Plaintiff's claims present common questions of law and fact, as explained above. The central inquiry is whether Wells Fargo violated the TCPA by sending text messages to the Class ...

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