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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

JAURIGUE LAW GROUP

Michael J. Jaurigue (SBN 208123)

michael@jlglawyers.com

Abigail A. Zelenski (SBN 228610)

abigail@jlglawyers.com

David Zelenski (SBN 231768)

david@jlglawyers.com

Ryan A. Stubbe (SBN 289074)

ryan@jlglawyers.com

114 North Brand Boulevard, Suite 200

Glendale, California 91203

Telephone: (818) 630-7280

Facsimile: (888) 879-1697

Attorneys for Plaintiff An Phan

BAKER & McKENZIE LLP

Colin H. Murray (SBN 159142)

Colin.Murray@bakermckenzie.com

Teresa H. Michaud (SBN 296329)

Teresa.Michaud@bakermckenzie.com

Anne M. Kelts (SBN 298710)

Anne.Kelts@bakermckenzie.com

Two Embarcadero Center, 11th Floor

San Francisco, California 94111

Telephone: (415) 576-3000

Facsimile: (415) 576-3099

Attorneys for Defendant Agoda Company Pte. Ltd.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

AN PHAN, individually and on behalf of all 

others similarly situated,

Plaintiff,

v.

AGODA COMPANY PTE. LTD., a Singapore 

private limited liability company; and DOES 1 

through 50,

Defendants.

Case No. 16-cv-07243-BLF

JOINT CASE MANAGEMENT STATEMENT

Assigned to Hon. Beth Labson Freeman

Date: April 27, 2017

Time: 11:00 a.m.

Courtroom: 3

Complaint Filed: November 14, 2016

Notice of Removal Filed: December 19, 2016
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

1

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, to the Standing Order for All Judges 

of the Northern District of California, and to the Standing Order Re Civil Cases Before District Judge 

Beth Labson Freeman, Plaintiff An Phan and Defendant Agoda Company Pte. Ltd. (“Agoda”) submit 

this Joint Case Management Statement. Plaintiff and Agoda are filing this Joint Statement following the 

early meeting of counsel, held on April 3, 2017.

1. Jurisdiction and Service.

In this action, Plaintiff brings a single claim for relief against Agoda under the Telephone 

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. (Defs. Agoda Int’l USA Inc. and The Priceline 

Group Inc.’s Notice of Removal of Action from State Court (“Notice of Removal”) Ex. 2 [ECF 1-2] 

¶¶ 37–42.) Former Defendants Agoda International USA Inc. and The Priceline Group Inc. removed the 

case to the within Court on December 19, 2016. (See generally Notice of Removal [ECF 1] at 1.) The 

Notice of Removal states that the Court has subject-matter jurisdiction of this action under 28 U.S.C. 

§ 1332 because the amount in controversy exceeds $75,000 and because this is a civil action between 

citizens of different states. (Notice of Removal [ECF 1] ¶ 5.) Plaintiff, on the other hand, submits that 

the Court has subject-matter jurisdiction because federal and state courts have concurrent subject-matter 

jurisdiction over suits arising under the TCPA. Mims v. Arrow Fin. Servs., 132 S. Ct. 740, 745 (2012).

Following removal, Plaintiff voluntarily dismissed Agoda International USA Inc. and The 

Priceline Group Inc. without prejudice. (See generally Stipulation of Voluntary Dismissal Without 

Prejudice Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) as to Defs. Agoda Int’l USA Inc. and The Priceline 

Group Inc. Only [ECF 12].) Agoda therefore is the only remaining Defendant in this action. Plaintiff 

served Agoda with the Complaint on December 21, 2016 (see Stipulation Extending Defs.’ Time to 

Respond to Pl.’s Compl. [ECF 6] ¶ 4), and Agoda filed its Answer on January 26, 2017 (see generally

Agoda’s Ans. to Pl.’s Class-Action Compl. [ECF 15]).

No parties in the Complaint remain to be served. Plaintiff and Agoda agree that the Court has 

personal jurisdiction over Agoda.

2–3. Facts and Legal Issues.

Plaintiff and Agoda agree that Agoda provides a service through which consumers can book 

hotel reservations, using either Agoda’s website—agoda.com—or a mobile-device application (i.e., an 
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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“app”). (Agoda’s Ans. to Pl.’s Class-Action Compl. (“Ans.”) [ECF 15] ¶ 11.) Plaintiff alleges that, in 

November 2016, he booked four reservations through Agoda’s website. (Notice of Removal Ex. 2 [ECF 

1-2] ¶¶ 18–19.) He further alleges that, within minutes of completing each of these reservations, he 

received text messages on his cellular telephone stating: “Good news! Your Agoda booking [number] 

is confirmed. Manage your booking with our free app.” (Notice of Removal Ex. 2 [ECF 1-2] ¶ 21.) He 

also alleges that Agoda sent him an additional message containing the text “App download,” as well as a 

hyperlink to “app-agoda.com.”1 (Notice of Removal Ex. 2 [ECF 1-2] ¶ 22.)

Agoda admits that, when booking a hotel reservation through agoda.com, all consumers must 

provide their respective names, e-mail addresses, countries of residence, and cellular-telephone 

numbers. (Ans. [ECF 15] ¶ 14.) Plaintiff alleges that Agoda entered the cellular-telephone number that 

he had provided into a contact-list database and then sent him the above-described messages using 

equipment capable of accessing that database to automatically dial his number. (Notice of Removal Ex. 

2 [ECF 1-2] ¶ 28.) Plaintiff alleges that, using the same equipment, Agoda sent thousands of similar text 

messages to the general public. (Notice of Removal Ex. 2 [ECF 1-2] ¶ 29)

Plaintiff contends that the sending of these messages violates the TCPA. The TCPA prohibits 

using an automatic telephone dialing system to place telemarketing calls to consumers’ cellular 

telephones without the consumers’ prior express written consent. See 47 U.S.C. § 227(b)(1) (stating that 

“[i]t shall be unlawful . . . (A) to make any call (other than a call made for emergency purposes or made 

with the prior express consent of the called party) using any automatic telephone dialing system . . . (iii) 

to any telephone number assigned to a . . . cellular telephone service”); 47 C.F.R. § 64.1200(a)(2) 

(explaining that, after October 16, 2013, “prior express consent” as used in subsection (b)(1)(A)(iii) of 

the TCPA means “prior express written consent”). Text messages “qualif[y] as . . . ‘call[s]’ within the 

compass of [the TCPA].” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016). According to 

Plaintiff, the messages that Plaintiff received constitute telemarketing, since they were sent not only to 

confirm Plaintiff’s reservations, but to encourage the downloading of Agoda’s app. See Report and 

Order, In the Matter of Rules and Regulations Implementing the TCPA of 1991, 18 FCC Rcd. 14014, 

 

1 Agoda disputes the number of text messages that Plaintiff allegedly received.
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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14094 (July 3, 2013) (explaining that “dual-purpose calls,” e.g., calls containing elements of both 

customer service and marketing, constitute telemarketing).

Plaintiff further contends that, under the relevant regulation, “prior express written consent 

means an agreement, in writing, bearing the signature of the person called” that “include[s] a clear and 

conspicuous disclosure informing the person signing that . . . [he or she] authorizes the seller to 

deliver . . . telemarketing calls using an automatic telephone dialing system,” as well as a “clear and 

conspicuous disclosure” stating that he or she “is not required to sign the agreement . . . as a condition of 

purchasing any property, goods, or services.” 47 C.F.R. § 64.1200(f)(8). Plaintiff alleges that at no time 

did he ever sign a document, whether in paper or electronic form, containing these disclosures. (Notice 

of Removal Ex. 2 [ECF 1-2] at ¶ 23.) Plaintiff also alleges that none of the other individuals whose 

numbers were entered into the contact-list database signed anything containing the requisite disclosures. 

(Notice of Removal Ex. 2 [ECF 1-2] ¶ 34.) Plaintiff therefore seeks to represent a Class consisting of all 

individuals in the United States who, since October 16, 2013, received at least one text message from 

Agoda on their respective cellular telephones. (Notice of Removal Ex. 2 [ECF 1-2] at ¶ 30.)

Agoda disputes Plaintiff’s allegations and contends that Plaintiff, and the Members of the 

putative Class he hopes to represent, consented to receive the text messages relating to his online travel 

bookings by providing his phone number as part of his booking process, never revoked his consent, and 

further waived any complaint to the receipt of the text messages by continuing to make bookings 

thereafter either through Agoda’s website or app, soliciting additional text messages. (Notice of 

Removal Ex. 2 [ECF1-2] ¶ 18–20); see Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1048 

(9th Cir. 2017). Moreover, Agoda contends that the text messages Plaintiff received did not constitute 

telemarketing, as they clearly were confirmatory messages sent in response to his requested transaction 

for the purpose of informing Plaintiff that his booking had been accepted and providing him a method 

for managing his existing transactions through his mobile device while traveling. (Notice of Removal 

Ex. 2 [ECF 1-2] ¶ 21.)

4. Motions.

To date, no motions have been filed.

Plaintiff intends on filing a motion for class certification, after engaging in sufficient discovery. 
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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He also may file a motion for summary judgment or summary adjudication. He reserves the right to file 

additional motions, including discovery motions, in due course, should such motion practice be 

necessary.

Agoda will oppose any motion by Plaintiff for class certification since class treatment of this 

case would be improper. Agoda will further oppose any motion for summary judgment or summary 

adjudication Plaintiff files, and intends to file its own motion for summary judgment or summary 

adjudication. Agoda further reserves the right to file any additional motions, including discovery 

motions, if necessary.

5. Amendment of Pleadings.

As noted above, the parties disagree on the total number of text messages that Plaintiff received. 

If discovery clarifies the precise number of messages that were sent to Plaintiff, he likely will amend the 

Complaint to reflect that fact. Although Plaintiff presently does not anticipate making any further 

amendments, discovery may reveal additional facts that likewise may require amendment. For example, 

discovery may reveal that the messages were sent by an entity acting at Agoda’s direction, instead of by 

Agoda directly. If that turns out to be the case, then Plaintiff may seek leave to amend in order to allege 

claims against Agoda’s agents, as Plaintiff contends these entities would be jointly and severally liable 

under the TCPA. See, e.g., Gomez v. Campbell-Ewald Co., 768 F.3d 871, 877–79 (9th Cir. 2014); 

Roylance v. ALG Real Estate Servs., Inc., 2015 WL 1522244 at *13 (N.D. Cal. Mar. 16, 2015); Cellco 

P’ship v. Plaza Resorts, Inc., 2013 WL 5436553 at *6 (S.D. Fla. Sept. 27, 2013) (citing cases). Also by 

way of example, evidence concerning the dates that messages were sent to Plaintiff and the Class could 

necessitate amendment of the Complaint, such as the inclusion of a sub-class for pre-October 16, 2013, 

messages.

Agoda reserves the right to amend its Answer in the event discovery reveals the availability of 

additional defenses or affirmative defenses.

In order to give sufficient time to Plaintiff and Agoda to conduct the necessary discovery, the 

parties propose a deadline of August 24, 2017, for the filing of any stipulation, or for the reservation of 

any motion, to amend the Complaint or Answer.

/ / / / /
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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6. Evidence Preservation.

Plaintiff and Agoda have reviewed the Guidelines for the Discovery of Electronically Stored 

Information, as well as the Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored 

Information. Plaintiff and Agoda confirm that they have met and conferred regarding reasonable and 

proportionate steps to be taken for the preservation of evidence relevant to the issues in this action.2

7. Disclosures.

Plaintiff and Agoda have agreed to serve their respective initial disclosures by May 8, 2017—

i.e., twenty-one days after the deadline contemplated by Rule 26 of the Federal Rules of Civil Procedure. 

Plaintiff and Agoda have agreed to this schedule in order to give Agoda’s counsel sufficient time to 

confer with its client in light of the Thai new-year holiday, during which Agoda’s counsel represented 

many of Agoda’s employees would be unavailable.

8. Discovery.

Plaintiff and Agoda have agreed that class certification and merits discovery should proceed 

simultaneously. Having said that, Plaintiff will attempt, initially, to focus his discovery requests on 

issues relevant to class certification (with the understanding that there is overlap between certification 

issues and the underlying merits). Plaintiff already has served a first set of written discovery requests on 

Agoda, consisting of interrogatories, requests for production, and requests for admission. This 

discovery is focused on several key areas of investigation, including the number of text messages that 

Agoda transmitted since October 16, 2013; the call logs maintained by Agoda; the types of written 

consent forms used by Agoda; and the equipment used by Agoda to transmit text messages. Plaintiff 

also presently anticipates taking the deposition of Agoda’s corporate representative concerning Agoda’s 

telemarketing system, call logs, consent protocols, and written discovery responses, as well as the 

deposition of Agoda’s experts.

 

2

In connection with the early meeting of counsel, Plaintiff informed Agoda that Agoda should 

maintain the integrity of its contact-list database, as well as the logs reflecting the content of text 

messages, the telephone numbers to which Agoda attempted to deliver the messages, the date and time 

that Agoda attempted to deliver the messages, and whether the messages were successfully delivered. 

Plaintiff believes that Agoda’s maintenance of these materials should not pose an undue burden, since 

Plaintiff presently understands that Agoda sent text messages only for a discrete, limited period of time 

after October 16, 2013, and that Agoda no longer sends any text messages.
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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Agoda intends to serve written discovery on Plaintiff, consisting of interrogatories, requests for 

production, and requests for admission focused on, inter alia, Plaintiff’s relationship to Agoda, his use 

of Agoda’s website and app, his communication with putative Class Members, previous class actions 

Plaintiff has filed, and Plaintiff’s damages, if any. Agoda further intends to take Plaintiff’s deposition,

as well as the deposition of other fact witnesses or expert witnesses identified by Plaintiff or through 

discovery.

Presently, the only contemplated modification to the applicable discovery rules is a request by 

Plaintiff to increase the interrogatory limit from twenty-five to thirty. Plaintiff believes that the 

modification is warranted in light of the class-wide nature of the case, and that he is permitted to seek 

this modification at this time under rule 26 of the Federal Rules of Civil Procedure. See Hon. Beverly 

Reid O’Connell & Hon. Karen L. Stevenson, California Practice Guide: Federal Civil Procedure Before 

Trial (The Rutter Group, 9th Cir. ed. 2017) (“Counsel may request to propound additional 

interrogatories at the scheduling conference based on the projected needs of the case.”). Agoda believes 

that it is premature to increase the interrogatory limit at this time.

As set forth below, Plaintiff and Agoda propose a deadline of February 22, 2018, for the 

reservation of any class-certification motion, which should give sufficient time to engage in the 

discovery necessary for briefing certification issues.

9. Class Actions.

Again, Plaintiff seeks to certify a Class consisting of all individuals in the United States who, 

since October 16, 2013, received at least one text message from Agoda on their respective cellular 

telephones. He will seek to certify this Class on the ground that there are common questions of law and 

fact that predominate over any questions affecting only individual Class Members. See Fed. R. Civ. P. 

23(b)(3). Plaintiff submits that the following TCPA-related questions are common to the Class in the 

sense that they need be decided only once for the Class as a whole, not separately for each Class 

Member:

• Whether the text messages received by the Class constitute telemarketing or 

advertising. Although thousands of individuals may have received text messages 

since October 16, 2013, each of those messages likely falls into one of a discrete 
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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number of separate templates; to the extent that large groups of individuals

received messages all generated from the same underlying template, the Court 

need only look at the template itself to rule on the telemarketing/advertising issue. 

For example, Plaintiff received text messages stating, “Good news! Your Agoda 

booking [number] is confirmed. Manage your booking with our free app.” That

same message may have been sent to thousands of separate recipients, so the 

Court need only look at that underlying template in order to rule on whether the 

messages contain an advertisement or constitute telemarketing.

• Whether the equipment used to send the text messages is an automatic telephone 

dialing system. If the same equipment was used to send all of the messages, the 

Court need only answer this question once.

• Whether the process that Agoda used for adding telephone numbers to its contactlist database included the use of a form setting forth all of the necessary 

disclosures under the prior-express-written-consent standard.

Agoda disputes Plaintiff’s position that the alleged commonalties listed above exist among 

putative Class Members, and would oppose class certification on this basis. Agoda maintains that 

factual differences among consumers regarding any reservations and/or consent made through Agoda’s 

website or app and text messages received would preclude class certification in this case.

Plaintiff and Agoda propose a deadline of February 22, 2018, for the reservation of any 

certification motion.

10. Related Cases.

Plaintiff and Agoda are not aware of any related cases or proceedings against Agoda that are 

pending before any court or administrative body.

11. Relief.

Under the TCPA, a plaintiff is entitled to recover either actual damages, on the one hand, or 

statutory damages of $500 for each improper text message, on the other hand. See 47 U.S.C. 

§ 227(b)(3). Furthermore, if a defendant acted “willfully or knowingly” in violating the TCPA, damages 

may be trebled. Id. Here, Plaintiff seeks class-wide, trebled statutory damages for Agoda’s alleged 
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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TCPA violations. (Notice of Removal Ex. 2 [ECF 1-2] ¶ 42.) Since the total amount of class-wide 

damages owing is a function of the total number of text messages received by the Class, Plaintiff cannot 

yet estimate the total amount of class-wide damages. Plaintiff, again, has requested this information 

from Agoda in his already-served first set of written discovery requests.

Agoda maintains that Plaintiff and the putative Class Members he hopes to represent are not 

entitled to any damages and has suffered no injury based on the allegations in the Complaint.

12. Settlement and ADR.

This case has been assigned to the ADR Multi-Option Program, governed by the Northern 

District of California’s ADR Local Rules. (Order Setting Initial Case Mgmt. Conference and ADR 

Deadlines [ECF 4] at 1:22–23.) Further to Rule 3-5 of the ADR Local Rules, Plaintiff and Agoda have 

filed their respective ADR Certifications. (ADR Certifications by Parties and Counsel [ECF 16, 17].) 

Also further to Rule 3-5, Plaintiff and Agoda have met and conferred, and they have selected private 

mediation as their preferred ADR process. (Stipulation and [Proposed] Order Selecting ADR Process 

[ECF 18].)

Plaintiff and Agoda believe that, in order to have a fruitful mediation, they need to engage in 

some initial discovery (e.g., Plaintiff needs sufficient data in order to estimate the extent of his alleged 

damages). They therefore proposed in their Stipulation Selecting ADR Process that the presumptive 

ninety-day deadline for conducting mediation be waived. (Stipulation and [Proposed] Order Selecting 

ADR Process [ECF 18].) On April 7, 2017, the Court approved the Stipulation’s proposed mediationcompletion deadline of December 22, 2017. (Order Selecting ADR Process [ECF 19].)

13. Consent to Magistrate Judge for All Purposes.

A Declination to Magistrate Judge Jurisdiction was timely filed on December 22, 2016. (See

generally Declination to Magistrate Judge Jurisdiction [ECF 7].)

14. Other References.

At this time, Plaintiff and Agoda do not believe that this case is suitable for reference to binding 

arbitration, a special master, or the Judicial Panel on Multidistrict Litigation.

15. Narrowing of Issues.

At this time, Plaintiff and Agoda do not believe that the scope of issues can be significantly 
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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reduced.

16. Expedited Trial Procedure.

Plaintiff and Agoda agree that this action should not be handled under General Order No. 64 

Attachment A.

17. Scheduling.

Because the Court has not yet ruled on whether this case will proceed on a class-wide basis, 

Plaintiff and Agoda believe that it is premature to set a firm trial schedule. Instead, they propose that a 

further scheduling conference be held after the Court has ruled on Plaintiff’s class-certification motion, 

at which time the scope of the case will be clearer. As set forth above, Plaintiff and Agoda propose a 

deadline of February 22, 2018, for the reservation of any certification motion.

If the Court is inclined to enter firm dates at this time, Plaintiff and Agoda propose the following 

schedule:

• Deadline for reserving any class-certification motion: February 22, 2018.

• Expert-witness designation deadline: May 17, 2018.

• Rebuttal-expert-witness designation deadline: June 14, 2018.

• Discovery cut-off: July 5, 2018.

• Deadline for reserving any dispositive motion: July 26, 2018.

• Deadline for hearing any dispositive motion: August 30, 2018.

• Pretrial conference: November 1, 2018.

• Trial: December 3, 2018.

18. Trial.

Plaintiff has requested a trial by jury. (Notice of Removal Ex. 2 [ECF 1-2] at 10:2.) If the case 

proceeds on a class-wide basis, Plaintiff and Agoda estimate that trial will last ten days; if the case 

proceeds on an individual basis, they estimate that trial will last four days.

19. Disclosure of Non-Party Interested Entities or Persons.

Pursuant to rule 3-15 of the Northern District of California’s Local Rules, Plaintiff and Agoda 

have filed their respective Certifications of Interested Entities or Persons. (See generally Pl.’s 

Certification of Interested Entities or Persons [ECF 13]; Agoda’s Corporate Disclosure Statement and 
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JOINT CASE MGMT. STATEMENT – Case No. 16-cv-07243

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Certification of Interested Entities or Persons [ECF 14].) Other than himself, Plaintiff has no interest to 

identify. Other than itself, Agoda identifies Agoda Holding Company Ltd. as having an interest either in 

the subject matter in controversy or in a party to the proceeding.

20. Professional Conduct.

Plaintiff and Agoda’s respective counsel have reviewed the Guidelines for Professional Conduct 

for the Northern District of California.

21. Other Matters Relating to Efficient Resolution.

At this time, neither Plaintiff nor Agoda is aware of any other matter that may facilitate the just, 

speedy, and inexpensive resolution of this action.

Dated: April 20, 2017 JAURIGUE LAW GROUP

/s/ David Zelenski 3

Michael J. Jaurigue

Abigail A. Zelenski

David Zelenski

Ryan A. Stubbe

Attorneys for Plaintiff

Dated: April 20, 2017 BAKER & McKENZIE LLP

/s/ Teresa Michaud

Colin H. Murray

Teresa H. Michaud

Anne M. Kelts

Attorneys for Defendant

 

3 Pursuant to rule 5-1 of the Northern District’s Local Rules, I hereby attest that concurrence in the 

filing of this document has been obtained from the signatories below.