GoDaddy has got to be scratching its head right about now.

It finds itself on the wrong side of what looks to be one of the largest certified TCPA classes in history, based on individually launched telephone calls that may or may not have been sales calls. Its apparent crime? Failing to introduce affirmative evidence of the purpose of the calls in opposing certification, despite the fact that Plaintiff should have been put to his proof on that issue and—to my review—didn’t come close.

Perhaps most critically for everyone else, however, the ruling certifying the class holds that the actual content of calls is irrelevant to assessing whether or not the calls constitute telemarketing—instead all that matters is a callers intent in launching the call.

Welcome to TCPAWorld guys. Let’s dive in.

In Bennett v. Godaddy, No. CV-16-03908-PHX-ROS, 2019 U.S. Dist. LEXIS 59766 (D. Az. April 08, 2019) GoDaddy employed a team called its “Customer Development Team” that made outbound calls to current customers. Plaintiff—largely relying on the Defendant’s job posting listing CDT responsibilities as “inside sales” (clever)—argued that all calls made by CDT were sales calls. Plaintiff also provided evidence of the call CDT made to him which, indeed, looked a whole lot like a sales pitch. GoDaddy countered arguing—no way were all the calls made by CDT sales calls. Many times they were informational but you’d have to review the content of each call to determine which are which. (Notably a bunch of this order is redacted so it is impossible to tell exactly what GoDaddy said its calls were actually for.)

In assessing certification the Court found Rule 23(a) is met—noting the Defendant only “half-heartedly” disputed these elements—with the Court concluding that whether an ATDS was used and whether calls constitute sales calls are common issues across the class.

While the 23(a) analysis is perfunctory and a bit unsatisfying, the good stuff comes in the predominance analysis. There the Court rejects the Defendant’s argument that a call can be deemed “telemarketing” only after reviewing the contents of the call and determining if the caller encouraged “the purchase or rental of, or investment in, property, goods, or services” during the call, as the statute seems to require. Instead the Court finds that the content of the call is irrelevant—the call does not even need to be answered to be actionable. The proper question in the Court’s view, is whether initiated the call for purposes of telemarketing, not what actually occurred on each call. Hmmm.

In the Court’s view, therefore, if the call was launched to sell a GoDaddy product but all the CDT agent did was talk about Christmas ham the call would still violate the TCPA. And that is where GoDaddy got into trouble. Rather than focus on presenting evidence of the intent of the call it, apparently, focused entirely on evidence of the content of each call. That, it turns out, was a fatal mistake. Once the Court departed from a review of content it was left with nothing but Plaintiff’s view of the world on intent: “Defendant has not offered any specific evidence of calls under the campaigns that were not initiated for the purpose of telemarketing.”

So there you have it—the Defendant’s “failure” to prove the non-existence of intent to market was sufficient to allow a finding of predominance on the purpose of the calls. Case certified.

Couple of thoughts here. First, while it may seem unfair, unjust and wrong for the Court to certify a case based upon the Defendant’s failure to provide evidence—after all it is Plaintiff’s burden to prove every element of Rule 23, no?—this is not unusual in TCPA cases. Courts often impose an evidentiary burden on the Defendant in TCPA cases to show that a substantial percentage of the class lacks a claim in order to defeat certification. That doesn’t make it right, but it does make it a reality to live by here in TCPAWorld. And failing to meet that burden—or focusing on the wrong burden—is often fatal. As I often say, TCPA class action defense is not for the faint of heart or the green of horn.

Second, the Court’s determination that the content of a call is irrelevant to assessing whether or not the call constitutes telemarketing is… novel. While the Court is correct that the Eighth Circuit Court of Appeals once suggested that intent is the paradigm for assessing telemarketing, I am not aware of any case certifying a TCPA class action leveraging an assumption that the intention behind a call campaign trumps the content of calls for purposes of assessing whether the message is marketing or not. This is especially true as the line between informational and marketing calls has gotten blurrier and blurrier over the last few months.

Nonetheless, TCPAWorld defendants take heed—don’t expect variances in the content of calls to save you from certification. If the class is defined based upon campaigns that Plaintiff argues are designed to make sales, you better combat that argument with evidence of a different intent in opposing certification. Otherwise, a court may side with the Plaintiff and find that the campaign can be treated as made for a common purpose for certification (and probably merits) purposes.

Stay safe out there TCPAWorld.