Hand v. Beach Entm't KC, LLC

• Citation: 456 F.Supp.3d 1099
• Decision Date: 27 April 2020
• Docket Number: Case No. 4:18-cv-00668-NKL
• Parties: J.T. HAND, individually and on behalf of a class of all others similarly situated, Plaintiff, v. BEACH ENTERTAINMENT KC, LLC d/b/a Shark Bar, the Cordish Companies, Inc., Entertainment Consulting International, LLC, Defendants.
• Court: U.S. District Court — Western District of Missouri

456 F.Supp.3d 1099

J.T. HAND, individually and on behalf of a class of all others similarly situated, Plaintiff,

v.BEACH ENTERTAINMENT KC, LLC d/b/a Shark Bar, the Cordish Companies, Inc., Entertainment Consulting International, LLC, Defendants.

Case No. 4:18-cv-00668-NKL

United States District Court, W.D. Missouri, Western Division.

Signed April 27, 2020

Schuyler R. Ufkes, Pro Hac Vice, Benjamin H. Richman, Pro Hac Vice, Michael Ovca, Pro Hac Vice, Sydney Janzen, Pro Hac Vice, Chicago, IL, William Charles Kenney, Bill Kenney Law Firm, LLC, Kansas City, MO, Brandt Silver-Korn, Pro Hac Vice, Eve-Lynn J. Rapp, Pro Hac Vice, Edelson PC, San Francisco, CA, for Plaintiff.

David I. Zalman, Pro Hac Vice, Kelley Drye & Warren LLP, New York, NY, Glenn T. Graham, Pro Hac Vice, Lauri Anne Mazzuchetti, Pro Hac Vice, Whitney M. Smith, Pro Hac Vice, Kelley Drye & Warren LLP, Parsippany, NJ, W. James Foland, Jean A. Botkin, I. Zachary Tyler Bowles, Jacqueline M. Sexton, Foland Wickens Roper Hofer & Crawford, Kansas City, MO, for Defendant Beach Entertainment KC, LLC.

Jacqueline M. Sexton, W. James Foland, Jean A. Botkin, I. Zachary Tyler Bowles, Foland Wickens Roper Hofer & Crawford, Kansas City, MO, for Defendants the Cordish Companies, Inc., Entertainment Consulting International, LLC.

ORDER

NANETTE K. LAUGHREY, United States District Judge

Pending before the Court are Plaintiff's motion for class certification, Doc. 123, Plaintiff's motion for partial summary judgment, Doc. 140, Defendants' motion for summary judgment, Doc. 137, and Defendants' motion to exclude expert testimony, Doc. 133. For the reasons stated below, Plaintiff's motion for partial summary judgment is denied. Defendants' motion for summary judgment is granted in part and denied in part. Defendants' motion to exclude expert testimony is denied. Plaintiff's motion for class certification is granted in part and denied in part.

I. BACKGROUND¹

Plaintiff J.T. Hand's Second Amended Class Action Complaint against Defendants Beach Entertainment KC, LLC d/b/a Shark Bar ("Shark Bar"), the Cordish Companies, Inc. ("Cordish Companies"), and Entertainment Consulting International, LLC ("ECI") alleges violations of the Telephone Consumer Protection Act and its implementing regulations. See Doc. 56 (Second Amended Complaint). The Second Amended Complaint states that between April 25, 2014, and April 4, 2018, Plaintiff and putative class members received text messages that they had not consented to from Defendants advertising Shark Bar's products and services. Specifically, Plaintiff Hand alleges the following causes of action:

• Count I (the ATDS Claim) – violations of 47 U.S.C. § 227(b)(1)(A)(iii) for using an ATDS to send text messages without consent;

• Count II (the Procedural Claim) – violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d) for sending text messages without first implementing adequate procedures to prevent telemarketing calls or text messages to persons who request not to receive calls or text messages by that entity;

• Count III (the Do-Not-Call Claim) – violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(c)(2) for making more than one telephone solicitation to a person on the NDNCR in a twelve-month period;

• Count IV (the Revocation Claim) – violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d)(3) for transmitting more than one advertising and/or telemarketing text message and/or telemarketing phone call within any twelve-month period after being requested to stop.

Hand seeks to certify two classes under Count I—the SendSmart Class and Txt Live Class—and one class under Count III—the Do Not Call Class.

Shark Bar is one of a series of drinking establishments located within the Kansas City Power & Light District, which is a retail, entertainment, office, and residential district located in downtown Kansas City, Missouri. Doc. 138-17 (Kyle Uhlig Declaration). As part of its promotions, Shark Bar offered contests, giveaways, and events to individuals through text messages. Id. Shark Bar contends these messages were sent to Shark Bar's patrons who visited and voluntarily provided their contact information in order to enter to win one of these prizes or events. Id. Shark Bar claims it obtained putative class members' contact information when guests signed in to a hosted happy hour on a sign-in sheet² in order to receive drink specials, see Doc. 172-22 (Happy Hour Check-In Email), or when they filled out a paper card providing their name, phone number, email, and birthday, see Doc. 168-47 (Sample Shark Bar Paper Card). Shark Bar claims that upon collecting contact information, its employees manually entered the information into the bar's texting platform and subsequently shredded the sign-in sheets or paper cards. Doc. 172-6 (Kyla Bradley Deposition), p. 91.

Hand does not dispute that Shark Bar obtained individuals' contact information in these ways, although he maintains that he did not provide his contact information to Shark Bar. Doc. 172 (Hand's Response to Defendant's Statement of Facts), pp. 17–18. Shark Bar's records show that Hand's contact information was first entered into its contact database on November 2, 2013. Doc. 138-11 (Txt Live Contact Database Screenshot). The record accurately reflects Hand's name, gender, phone number, and email address, however the birthdate in the system is twenty-three days earlier than Hand's actual birthdate. Doc. 138-9 (Hand Deposition), pp. 95–96. Hand asserts that he did not provide his contact information to Shark Bar on November 2, 2013 or any time thereafter. Id. at pp. 96–97. Hand recalls having visited Shark Bar twice—once on May 7, 2016, when he also purchased drinks, and once on May 13, 2016. Id. at p. 98; Doc. 138-18 (Shark Bar Transaction Record).

From 2015–2017, Hand received four text messages from Shark Bar. The first message was sent on March 18, 2015 stating "Hi Jt, it's Kyle at Shark Bar. Happy Early Bday! We'd love to have you on a Fri or Sat to party and drink free! Text /bday' to book!" Doc. 138-20 (Hand SendSmart Text Record). Shark Bar sent the same message again the following year on February 24, 2016. Id. The third and fourth texts from Shark Bar, sent on September 6, 2017 and December 14, 2017, again offered to host a party, stating "Hello Jt it's Kyle from Shark Bar KC. You entered to win a free party with us and we picked your name today! Text yes for more info!" and "Hi Jt! It's Kyle at Shark Bar. It's been awhile since we've seen you! We would like to invite you in for a VIP party with great specials. Interested?" Doc. 138-21 (Hand Txt Live Text Record). Hand did not accept any of the offers in these texts, and at some point during the four-year class period, he claims he responded by texting "stop," but the messages continued. Doc. 172-23 (Hand Deposition), pp. 89–90. Shark Bar disputes that Hand texted "stop," as their records do not reflect receiving that message. Hand has been registered on the national do-not-call registry as of June 7, 2012. Doc. 124-17.

During the relevant time period, Shark Bar used two different platforms to send its promotional messages. From 2014 through approximately March 2016, Shark Bar used the platform SendSmart to send its messages. Doc. 138-2 (Defendant Interrogatory Answers). ECI contracted with SendSmart's third-party owner in order to allow the venues ECI consulted with, including Shark Bar and other Kansas City Power & Light venues, to use the systems. Doc. 144-6 (SendSmart Service Agreement). "Cordish Co." and "Cordish/ECI" are listed as the client on the SendSmart Service Agreement and payor for the account on the SendSmart invoices. Id. at p. 15; Doc. 172-9 (SendSmart Invoices). Beginning in March 2016, ECI, Shark Bar, and other Kansas City Power & Light venues began transitioning from SendSmart to the newly developed texting system Txt Live, including importing all the venues' contacts from SendSmart into Txt Live. Doc. 138-2. ECI contracted with a software development company to build Txt Live for ECI and the venues ECI worked with, including the Kansas City Power & Light venues. Doc. 144-12 (Kyle Uhlig Email); Doc. 144-13 (Txt Live Software Development Agreement).

SendSmart and Txt Live functioned in essentially the same way. A venue employee imported contacts into the system database, either by individually typing in the contact's information or by uploading a spreadsheet of contacts in a comma-separated values (CSV) file. Doc. 138-3 (David Yasnoff Declaration); Doc. 138-5 (Blake Miller Deposition). In order for SendSmart or Txt Live to send a message to a phone number, the phone number needed to be uploaded by a system user; the platforms could not generate phone numbers independently. Doc. 172, p. 25. To send text messages, a venue employee logged into the system, identified the number of individuals to be texted, narrowed the potential group of recipients by selecting the characteristics of those individuals if desired (e.g. recently added contact, birth date, etc.), typed out a message or selected a pre-saved message in the system, and pressed send. Doc. 138-17, ¶¶ 15, 18; Doc. 172-21 (Kyle Uhlig Deposition), p. 51. When a venue employee narrowed down the potential contacts to be messaged, either by determining a certain number of contacts and/or by filtering the contact characteristic, the system would then use a "shuffle" function to randomly select which contacts would be messaged. Doc. 172-30 (Blake Miller Deposition); Doc. 172-31 (Benjamin Rodriguez Deposition); Doc. 172-39 (Txt Live and SendSmart Screenshots). If a recipient responded by asking a question or by accepting the venue's offer for a giveaway or event, a venue employee could then message back and forth with the recipient in SendSmart or Txt Live regarding details. Doc. 138-17.

The precise nature of the relationship between Shark Bar, ECI, and Cordish Companies as well as ECI's and Cordish Companies' involvement with the messaging campaigns are disputed. ECI is a...