Robinson v. Onstar, LLC

• Decision Date: 22 January 2020
• Docket Number: Case No.: 15-CV-1731 JLS (MSB)
• Parties: KATHRYN M. ROBINSON, individually and on behalf of all others similarly situated, Plaintiff, v. ONSTAR, LLC; and DOES 1 through 50, inclusive, Defendants.
• Court: U.S. District Court — Southern District of California

KATHRYN M. ROBINSON, individually and on behalf of all others similarly situated, Plaintiff, v. ONSTAR, LLC; and DOES 1 through 50, inclusive, Defendants.

Case No.: 15-CV-1731 JLS (MSB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 22, 2020

ORDER (1) DENYING AS MOOT PLAINTIFF'S MOTION TO EXCLUDE EVIDENCE, AND (2) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

(ECF Nos. 150, 179)

Presently before the Court are Plaintiff Kathryn M. Robinson's Motions for Class Certification ("Cert. Mot.," ECF No. 150) and to Exclude Portions of the New Raddatz Declaration and for Fed. R. Civ. P. 37(c) & (e)(1) Evidentiary Sanctions in the Form of an Order Excluding Portions of the New Raddatz Declaration ("Mot. to Exclude," ECF No. 179). The Court held a hearing on January 9, 2020. See ECF No. 199. Having carefully considered the Parties' evidence, arguments, and the law, the Court DENIES AS MOOT Plaintiff's Motion to Exclude and DENIES WITHOUT PREJUDICE Plaintiffs' Motion for Class Certification.

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BACKGROUND¹

I. Factual Background

A. Defendant and Its Services

Defendant provides telematics services, including emergency and safety services and additional services for customers' convenience. Decl. of Nicholis Festa ("Festa Decl.," ECF No. 169-37) ¶ 4. For example, Defendant's technology can detect when a car has been in an accident and then connect the customer with a representative for help without the customer needing to do anything. Id. ¶ 5(a). Defendant's equipment comes pre-installed in most General Motors vehicles. Id. ¶ 3.

B. Defendant's Sign-Up Process

1. The Acknowledgment Form and Terms and Conditions

At all relevant times, lessees or purchasers of new vehicles equipped with OnStar Telematics Services ("OTS") were required to sign a one-page GM Customer Incentive and OnStar Acknowledgment Form (the "Acknowledgment Form"), Decl. of Kimberly A. Kralowec ("Pl.'s Exs.") at 38 ¶ 9, 41-42 ¶ 23, 77,² which contains both a Customer Incentive Acknowledgment and a Vehicle Software and OnStar Acknowledgment (the "OnStar Acknowledgment"). Id. at 77. The bottom of the Acknowledgment Form instructs that it "is a required documents [that] . . . must be completed, signed, and retained in EVERY DEAL FILE for all customers even if there are no incentives or rate support available." Id. at 77 (emphasis in original).

The second paragraph of the OnStar Acknowledgment indicates, "I acknowledge that I have received the Terms and Conditions applicable to the OnStar Services" and that"[c]opies are available in my vehicle glove box, from my dealer, at www.onstar.com or by contacting OnStar directly." Id. (emphasis in original). Although the Terms and Conditions were available through a link at the bottom of Defendant's website, id. at 43 ¶ 26, 159 ¶ 3, Defendant discontinued the practice of including a copy of the Terms and Conditions in the vehicle glove box beginning in 2012. Id. at 42 ¶ 26. Defendant also mailed a copy of the Terms and Conditions to those who subscribed to OTS. Id. at 40 ¶¶ 16-17, 42 ¶¶ 24-25.

Defendant's "Terms and Conditions of Your OnStar® Service" (the "Terms and Conditions") open by noting that "[t]hese terms and conditions are the agreement between us" and to "PLEASE READ THIS AGREEMENT BEFORE USING ANY OnStar SERVICE." Id. at 79 (emphasis in original). Paragraph 2 provides the terms of payment:

If you have a credit or debit card account or similar payment account on file with us, we'll automatically charge it monthly if you have not otherwise pre-paid your subscription. Once you place your payment account on file with us, we may receive automatic updates of that account information from the financial institution for that account in order to keep that payment information current. All OnStar service is payable and due in advance. If you do not have such an account on file with us you must provide us with payment monthly (or other payment period offered by us and chosen by you) in advance. We'll continue to charge the payment account you provided monthly (or you must continue to make payments monthly) until you or we cancel your service as allowed in this agreement, or you choose another payment period offered by us. The price of your OnStar Plan may change over time, and we'll use the rates then in effect for the applicable payment period for those charges.

The purchase or lease price of your Car may have included a prepayment for a period of time for a specified OnStar Plan. If so, you must arrange for payment to us after this period of time expires. If you have a payment account on file with us, we will automatically start charging you monthly as set out above.

Id. at 79 (emphasis in original). As for pricing, Paragraph 5 notes that "[y]ou can get information on the prices and the services in each OnStar Plan and for OnStar Hands-Free Calling by going to www2.onstar.com, by calling us, or by pressing the blue OnStar button in your Car and asking an OnStar Advisor." Id. at 80 (emphasis in original).

Paragraph 39 of the Terms and Conditions is an arbitration provision entitled "HOW WE'LL RESOLVE DISPUTES BETWEEN US." Id. at 84 (emphasis in original). Specifically, the Terms and Conditions establish that,

If you and we have a disagreement related to OnStar service, we'll try to resolve it by talking with each other. If we can't resolve it that way, WE BOTH AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO USE CONFIDENTIAL ARBITRATION, NOT LAWSUITS (except for small claims court cases) TO RESOLVE THE DISPUTE.

. . .

. . . THIS AGREEMENT DOESN'T PERMIT CLASS ARBITRATIONS EVEN IF AAA OR BBB PROCEDURES OR RULES WOULD.

Id. at 84 (emphasis in original).

Returning to the OnStar Acknowledgment, the fourth paragraph provides:

Unless I indicate otherwise to OnStar, I understand that if I provide OnStar with my credit or debit card information at any time, it will be kept securely on file and will be automatically charged when payment for my OnStar Plan becomes due (at the then current rate). Notice of the payment due date, the monthly amount due and how to update or remove my credit or debit card information will be provided at least 30 days prior to any charges. Current pricing and information relating to the OnStar Plans can be found at www.onstar.com.

Id. To locate pricing information on Defendant's website, however, a visitor to the home page would have to click the orange "account login" button and set up an account. Id. at 160.

A signature line for the "Purchaser/Lessee" appears under both the OnStar Acknowledgment and the distinct Customer Incentive Acknowledgment. See id. at 77. Arandom sampling of data for new car subscribers from Defendant's databases revealed that between 70 and 80% of the customers who subscribed to OTS were also the registered owner or lessee of the vehicle who signed the Acknowledgment Form and, thereby, the OnStar Acknowledgment. Pl.'s Exs. at 107-08, 127, 217-19, 221-22; Decl. of Kirsten H. Spira ("Spira Decl.," ECF No. 169-32) ¶ 6; Spira Decl. Ex. 30 (ECF No. 169-33).

2. The Welcome Call

To activate a free trial of OTS, customers would press a blue button inside the vehicle, which would initiate a cell phone call (the "Welcome Call") to an OnStar advisor. Pl.'s Exs. at 258 ¶ 2. These advisors were employees of a third-party vendor, either Convergys or Minacs, id., and were trained and required to provide certain mandatory disclosures during Welcome Calls.

Defendant provided "suggested scripting" for these Welcome Calls. See id. at 276-83. Following a Greeting and an Opening, the advisors were urged to "Educate [Consumers] on [Defendant's] Emergency Services," "Roadside assistance service," and "OnStar Vehicle Diagnostics." Id. at 276, 278-79, 281 (emphasis in original). After "Educat[ing consumers] on Hands-free Calling," advisors were to offer the service, using an "assumptive sales approach." Id. at 277, 279, 282 (emphasis in original). In the event that an advisor made a sale, the advisor was to provide the "HFC DISCLOSURE," which consisted of "REQUIRED Mandatory Scripting." Id. (emphasis in original). According to the script, the HFC Disclosure consisted of the following:

Verify name on the credit card (Please provide/verify the full name as it appears on the front of the card)

To ensure your OnStar services are always active, we recommend you place your credit card on file with us. We will notify you of the first payment due date and the monthly amount due for your service 30 days prior to any charges being made. Of course, you can modify or remove your card from your account

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at any time by calling us or pressing your blue button. Would you like to place this card information securely on file?[]³

Just to confirm what we have agreed upon today

This a one-time charge of plus taxes, fees and other service charges - the minutes will be downloaded and available within 24-48 hours. You can confirm by pressing your white OnStar button and saying 'minutes' then 'verify[.']

These minutes have an expiration date . . . which can be extended with another Hand-Free Calling purchase. You must be [an] active Onstar subscriber to maintain the minutes. If you cancel or terminate the Onstar service, you will lose any unused Hands-Free Calling minutes.

Id. (emphasis in original); see also id. at 314-17. Indeed, instructors were to train advisors to provide "4 mandatory disclosures" "[a]fter obtaining a credit card for Continuous Coverage OR after it is obtained for the purchase of Hands-Free Calling minutes," namely:

• Can you verify the full name on the credit card? (Ok, thank you)

• Your card will be kept securely on your account

• You will be notified 30 days prior to your subscription renewal date which is March 2, 2011. The card will be billed monthly after your renewal date has passed to ensure continuous coverage.

• You can call to modify or cancel your account at any time.

Pl.'s Exs. at 299-302 (emphasis in original). It was stressed that "these disclosures...