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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT,

OR IN THE ALTERNATIVE, MOTION TO STAY

Paula L. Zecchini, AZ Bar No. 031880

Aaron M. McKown, (admitted pro hac vice)

COZEN O’CONNOR

999 Third Avenue, Suite 1900

Seattle, WA 98104

Telephone: 206.340.1000

Facsimile: 206.621.8783

E-Mail: pzecchini@cozen.com

 amckown@cozen.com

Attorneys for Defendant

GODADDY.COM, LLC 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

JOHN HERRICK, individually and as the 

representative of a class of similarly situated 

persons,

Plaintiff,

v.

GODADDY.COM, LLC,

Defendant.

Case No.: 2:16-cv-00254-DJH

DEFENDANT GODADDY.COM, 

LLC’S NOTICE OF MOTION 

AND MOTION FOR SUMMARY 

JUDGMENT OR, IN THE 

ALTERNATIVE, MOTION TO STAY

ORAL ARGUMENT REQUESTED

[Concurrently Filed with Separate 

Statement of Undisputed Material Fact, 

Request for Judicial Notice and 

Declaration of Paula L. Zecchini]

Complaint Filed: January 28, 2016

Trial Date: None Set.

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Defendant GoDaddy.com, LLC (“GoDaddy”) will 

and hereby does move this Court for summary judgment pursuant to Federal Rule of Civil 

Procedure 56 as to Plaintiff’s sole claim for violation of the Telephone Consumer Protection 

Act (“TCPA”), 48 U.S.C. § 227, on the following grounds:

(1) The text message at issue was not sent using an “automatic telephone dialing 

system” (“ATDS”), as that term is defined by the TCPA; and

(2) The text message at issue was not sent using an ATDS, as that term has been 

interpreted in guidance issued by the Federal Communications Commission 

(“FCC”).

GoDaddy alternatively moves the Court for a stay of proceedings pending the Ninth 

Circuit’s decision in Marks v. Crunch San Diego, No. 14-56834, to the extent the Court is 

inclined to deny GoDaddy’s Motion for Summary Judgment in reliance on the FCC’s 

“potential capacity” guidance.

This Motion is based upon this Notice, the Memorandum of Points and Authorities, 

the concurrently-filed Separate Statement of Undisputed Material Fact, Request for Judicial 

Notice and Declaration of Paula L. Zecchini, all pleadings and documents concerning this 

matter contained in the Court’s file, any other matters of which this Court may take judicial 

notice, and such further evidence and oral argument as may be presented at the hearing of 

this Motion.

Dated: March 31, 2017 COZEN O’CONNOR

Aaron M. McKown

Paula L. Zecchini

By: /s Paula L. Zecchini

Paula L. Zecchini

Attorneys for Defendant

GODADDY.COM, LLC 

Case 2:16-cv-00254-DJH Document 79 Filed 03/31/17 Page 2 of 24
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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................. 1

II. RELEVANT FACTUAL BACKGROUND ..................................................................... 3

III. LEGAL STANDARD........................................................................................................ 4

IV. ARGUMENT..................................................................................................................... 5

A. The TCPA Defines An Automatic Telephone Dialing System (ATDS)................... 5

B. The Undisputed Evidence Demonstrates That The 3Seventy Platform Is Not An 

ATDS Under The Statutory Definition ..................................................................... 6

C. FCC Guidance is Immaterial to the Court’s Determination as to whether the 

3Seventy Platform is an ATDS under the TCPA .................................................... 10

D. Even if FCC Guidance Is Applicable To This Court’s Determination, The 

Undisputed Evidence Demonstrates That The 3Seventy Platform Is Not An ATDS 

Under the FCC’s Interpretation Of The Statutory Definition ................................. 12

E. If The Court Is Inclined To Deny GoDaddy’s Motion For Summary Judgment In 

Reliance On The FCC’s “Potential Capacity” Guidance, GoDaddy Moves This 

Court For The Issuance Of A Stay .......................................................................... 14

V. CONCLUSION................................................................................................................ 17

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

TABLE OF AUTHORITIES

Cases

47 v. Shopkick, Inc.,

Case No. C-14-2464-MMC, 2015 WL 5013299 (N.D. Cal. Aug. 24, 2015) .................... 13

Anheuser-Busch, Inc. v. Natural Beverage Distribs.,

69 F.3d 337 (9th Cir. 1995).................................................................................................. 5

Bay Area Surgical Group, Inc. v. Aetna Life Ins. Co.,

No. 5:13-CV-05430-EJD, 2014 WL 2759571 (N.D. Cal. June 17, 2014)......................... 16

Beyene v. Coleman Sec. Servs., Inc.,

854 F.2d 1179 (9th Cir. 1988).............................................................................................. 5

Celotex Corp. v. Catrett,

477 U.S. 317 (1986)............................................................................................................. 4

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 827 (1984)........................................................................................................... 11

Clinton v. Jones,

520 U.S. 681 (1997)........................................................................................................... 15

De Los Santos v. Millward Brown Inc.,

No. 2014 WL 25 2938605 (S.D. Fla. June 30, 2014) .......................................................... 8

Derby v. AOL, Inc.,

Case No. 5:15-cv-00452-RMW, 2015 WL 5316403 (N.D. Cal. Sept. 11, 2015).............. 13

Dominguez v. Yahoo!

8 F. Supp. 3d 637 (E.D. PA 2014) ..................................................................................... 10

Emanuel v. Los Angeles Lakers, Inc.,

No. CV 12-9936-GW SHX, 2013 WL 1719035 (C.D. Cal. Apr. 18, 2013)........................ 7

Glauser v. GroupMe, Inc.,

No. 4:11-cv-02584, 2015 WL 475111 (N.D. Cal. Feb. 4, 2015)............................. 7, 12, 14

Gragg v. Orange Cab Co.,

Inc., 995 F. Supp. 2d 1189 (W.D. Wash. 2014)............................................................. 7, 14

Hunt v. 21st Century Mortgage Corp.,

No. 2:12-CV-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013) ........................ 8

Josendis v. Wall to Wall Residence Repairs, Inc., 

662 F.3d 1292 (11th Cir. 2011)........................................................................................... 11

Landis v. N. Am. Co., 

299 U.S. 248 (1936)............................................................................................................ 15

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

Leyva v. Certified Gorcers of Cal., Ltd., 

593 F.2d 857 (9th Cir. 1979)............................................................................................... 15

Lockyer v. Mirant Corp., 

398 F.2d 1098 (9th Cir. 2005)............................................................................................. 16

Luna v. Shac, LLC, 

No. 14-cv-00607-HRL, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015)............................. 13

Marks v. Crunch San Diego, LLC, 

55 F. Supp. 3d 1288 (S.D. Cal. Oct. 23, 2014) ....................................................... 7, 8, 9, 13

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574 (1986).............................................................................................................. 4

McKenna v. Whispertext, LLC, 

No. 5:14-cv-00424-PSG, 2015 WL 5264750 (N.D. Cal. Sept. 9, 2015) ............................ 13

Modica v. Green Tree Servicing, LLC, 

No. 14 C 3308, 2015 WL 1943222 (N.D. Ill. Apr. 29, 2015)............................................. 14

Myers v. Toojay’s Mgmt. Corp., 

640 F.3d 1278 (11th Cir. 2011)........................................................................................... 11

Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 

18 F.3d 1468 (9th Cir. 1994)................................................................................................. 4

Nussbaum v. Diversified Consultants, Inc., 

No. 15-CV-600, 2015 WL 5707147 (D. N.J. Sept. 28, 2015) ............................................ 16

Provo v. Rady Children’s Hosp. San Diego, 

2015 WL 6144029 (S.D. Cal. July 29, 2015)...................................................................... 16

Satterfield v. Simon & Schuster, Inc., 

569 F.3d 946 (9th Cir. 2009)....................................................................... 2, 6, 7, 10, 11, 12

Sherman v. Yahoo! Inc., 

997 F. Supp. 2d 1129 (S.D. Cal. 2014)................................................................................. 7

Rules

Fed. R. Civ. P. 56(c).................................................................................................................. 4

Fed. R. Civ. P. 56(e).................................................................................................................. 4

Regulations

In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 

27 F.C.C.R. 15391, 15392 n. 5 (2012).................................................................................. 9

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, 18 FCC Red 14014, 14092 (July 3, 2003) ....................................................... 5

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, 23 FCC Rcd 559, 566 (Jan. 4, 2008)................................................................ 5

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, 30 F.C.C. Rcd. 7961 (July 10, 2015) ............................................. 6, 10, 12, 15

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant GoDaddy.com, LLC (“GoDaddy”) is a provider of web-based products and 

services, including domain name registration, website hosting and other online business 

applications. As relevant to this case, GoDaddy employed a third-party marketing company, 

3Seventy, Inc. (“3Seventy”) to run its one and only text message marketing campaign. 

Plaintiff John Herrick (“Plaintiff”) alleges, on behalf of himself and the putative class, that 

his receipt of a single text message from the 3Seventy marketing campaign violated the 

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, on the grounds that the text 

message at issue was allegedly sent using an “automatic telephone dialing system” 

(“ATDS”). The undisputed evidence demonstrates otherwise. 

The TCPA specifically defines an ATDS as “equipment which has the capacity—(A) 

to store or produce telephone numbers to be called, using a random or sequential number 

generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Undisputed evidence 

adduced from 3Seventy demonstrates that the web-based software application used by 

3Seventy to send the text message at issue (the “3Seventy Platform”) allows users to send 

text messages only to those specific, identified phone numbers that are inputted into the 

Platform; it cannot be used to send text messages to random or sequentially-generated phone 

numbers. Based on this undisputed evidence, the 3Seventy Platform does not meet the 

TCPA definition of an ATDS. Indeed, a number of recent decisions in the Ninth Circuit 

involving platforms similar to the 3Seventy Platform have granted summary judgment in 

favor of the defendant where, as here, the software used to send the text messages does not 

have the capacity to generate random or sequential numbers, as required by the statutory 

definition. The plain language of the TCPA provides GoDaddy with a complete defense to 

Plaintiff’s TCPA claim.

GoDaddy anticipates that Plaintiff will endeavor to avoid summary judgment by 

drawing this Court into a circuitous argument based on guidance issued by the Federal 

Communications Commission (“FCC”) that attempts to broaden the definition of an ATDS 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

beyond the plain terms of the statute. The FCC’s interpretative rulings, however, are 

immaterial to this action given the Ninth Circuit decision in Satterfield v. Simon & Schuster, 

Inc., 569 F.3d 946 (9th Cir. 2009), which held the statutory definition of an ATDS to be 

“clear and unambiguous,” and as such, not subject to interpretation by the FCC. Plaintiff’s 

attempt to broaden the definition of an ATDS beyond the plain terms of the statute has 

already been rejected by courts throughout the Ninth Circuit. The outcome in this case 

should be no different. 

Yet even if the Court was to apply the FCC’s guidance to the issue of whether the 

3Seventy Platform qualifies as an ATDS under the TCPA, the undisputed evidence mandates 

dismissal. Although Plaintiff will likely focus this Court on the FCC’s interpretation of the 

term “capacity” in the TCPA’s definition of an ATDS to mean “potential capacity”—an 

incredibly overbroad and vague interpretation that is currently the subject of an appeal to the 

D.C. Circuit Court of Appeals and has generated significant controversy—neither the Court 

nor the parties need be drawn into an argument on this point. This is because regardless of 

the definition ascribed to the term “capacity” by the FCC, the FCC has repeatedly stated that 

the defining feature of an ATDS is not simply the capacity to dial numbers but rather the 

capacity to dial numbers without human intervention. A number of recent decisions in the 

Ninth Circuit support the conclusion that the level of human intervention required to send a 

text message from the 3Seventy Platform places it outside the scope of the FCC’s ATDS 

interpretation.

As set forth more fully herein, GoDaddy is entitled to summary judgment on the issue 

of whether it used an ATDS to send the text message at issue, regardless of whether the 

Court applies the clear and unambiguous statutory definition of an ATDS to the 3Seventy 

Platform or whether it looks to FCC commentary to resolve the matter. To the extent the 

Court believes it is unable to reach a determination on summary judgment without evaluating 

the “potential capacity” of the 3Seventy Platform, GoDaddy requests the issuance of a stay 

of this action pending a final determination of the appeal in Marks v. Crunch San Diego, 

LLC, No. 14-56834, which was stayed sua sponte by the Ninth Circuit pending a decision 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

from the D.C. Circuit on whether the FCC’s treatment of the term “capacity” in attempting to 

interpret the TCPA’s definition of an ATDS is “arbitrary, capricious, [or] an abuse of 

discretion.”

II. RELEVANT FACTUAL BACKGROUND

3Seventy operates the 3Seventy Platform, a cloud-based application software that 

enables 3Seventy’s clients to connect with their respective customers via text message. 

Zecchini Decl. ¶ 2, Ex. A (Wright Dep.) at 18:3-6. GoDaddy contracted with 3Seventy to 

implement its one and only text message marketing campaign, which resulted in Plaintiff 

receiving the text message at issue on December 15, 2015. Id. at 37:9-12, 14-17. The text 

message at issue was sent using the 3Seventy Platform. [Separate Statement of Undisputed 

Material Fact (“SSUF”) 1]

The 3Seventy Platform does not employ an “automatic telephone dialing system” 

(“ATDS”), as defined by the TCPA. The 3Seventy Platform is a web-based software 

application. [SSUF 2] At no time relevant did the 3Seventy Platform have the then-current

capacity to store or produce telephone numbers to be called using a random or sequential 

number generator and to then dial those numbers. [SSUF 3] The 3Seventy Platform cannot 

on its own generate telephone numbers to receive text messages. [SSUF 4] Rather, there are 

only two ways that the 3Seventy Platform can acquire phone numbers for use in sending text 

messages: (1) when a customer or other authorized person manually uploads telephone 

numbers onto the platform; or (2) when an individual sends an authorizing text to a keyword 

in response to a specific marketing campaign. [SSUF 5] The 3Seventy Platform did not 

generate the phone numbers to which GoDaddy’s December 15, 2015 text messages were 

sent. [SSUF 6] Rather, those numbers were provided by GoDaddy to 3Seventy via its FTP 

site and then uploaded by 3Seventy to the 3Seventy Platform. [SSUF 7] 

To send a text message via the 3Seventy Platform, the user must navigate to a website 

and manually log into 3Seventy’s Platform. [SSUF 8] Importantly, the user must upload a 

list of numbers and determine the numbers to which a message will be sent. [SSUF 9] To 

create a message, the user must manually type in the desired content. [SSUF 10] In order to 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

send a message, the user must manually select a time and date that the message will be sent. 

[SSUF 11] Finally, before the 3Seventy Platform can send a message, the user must type in 

a Captcha—twelve alphanumeric values—to approve and authorize sending the message. 

[SSUF 12] The 3Seventy Platform will not send a text message without human intervention 

at each of the following stages: (a) selecting telephone numbers to receive a message, (b) 

drafting message content, (c) determining the timing of a message, and (d) scheduling the 

date and time to transmit a message and (d) entering a Captcha to approve and authorize 

sending the message. [SSUF 13] 

III. LEGAL STANDARD

Summary judgment is a procedure that is “properly regarded not as a disfavored 

procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are 

designed to secure the just, speedy and inexpensive determination of every action.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotation marks omitted). Summary 

judgment serves the purpose of “avoid[ing] unnecessary trials when there is no dispute as to 

the facts before the court.” Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 

1468, 1471 (9th Cir. 1994). 

To prevail on a motion for summary judgment, the moving party need only show 

through the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits 

that there are no genuine issues of material fact, rendering the moving party “entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Once the moving party demonstrates 

that no genuine issues of material fact exist, the burden shifts to the nonmoving party to “do 

more than simply show that there is some metaphysical doubt as to the material facts” to 

avoid summary judgment being entered in the moving party’s favor. Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) Instead, the “nonmoving party must 

come forward with ‘specific facts showing there is a genuine issue for trial.’” Id. at 587 

(citing Fed. R. Civ. P. 56(e)) (emphasis added by Court). To deny summary judgment, the 

nonmoving party must prove, through admissible evidence, that the material facts are 

“genuine,” meaning “that a reasonable jury could find in favor of the nonmoving party.” 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 343 (9th Cir. 1995); 

Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).

IV. ARGUMENT

A. THE TCPA DEFINES AN AUTOMATIC TELEPHONE DIALING 

SYSTEM (“ATDS”)

The Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), prohibits 

the use of Automatic Telephone Dialing Systems to make certain telephone calls to cell 

phones. As it applies here, the TCPA makes it 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 or an artificial or prerecorded voice—

(iii) to any telephone number assigned to a paging service, cellular 

telephone service, specialized mobile radio service, or other radio service, 

or other radio common carrier service, or any service for which the called 

party is charged for the call.

47 U.S.C. § 227(b)(1)(A). 

The TCPA includes a statutory definition of the term automatic telephone dialing 

system (“ATDS”) as follows:

(a) Definitions: As used in this section—

(1) The term “automatic telephone dialing system” means equipment 

which has the capacity—

(A) to store or produce telephone numbers to be called, using a random or 

sequential number generator; and

(B) to dial such numbers.

47 U.S.C. § 227(a)(1). The Federal Communications Commission (“FCC”) adopted this 

definition in its regulations. See 47 C.F.R. 64.1200(f)(2).

The FCC has also asserted that the definition of an ATDS includes telephone 

equipment with the capacity to dial phone numbers without “human intervention.” See In 

the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act 

of 1991, 18 FCC Red 14014, 14092 (July 3, 2003) (“2003 Guidance”); In the Matter of Rules 

and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd 

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559, 566 (Jan. 4, 2008) (“2008 Guidance”); In the Matter of Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961 (July 

10, 2015) (“2015 Guidance”).

As discussed below, under the standard rules of statutory interpretation, the Ninth 

Circuit has held the definition of an ATDS to be clear and unambiguous, and therefore there 

is no need to refer to the more expansive FCC definition. Satterfield v. Simon & Schuster, 

569 F.3d 946, 951 (9th Cir. 2012). However, regardless of whether the Court applies the 

unambiguous language of the statute or FCC commentary, the 3Seventy Platform does not 

constitute an ATDS. Summary judgment should be granted.

B. THE UNDISPUTED EVIDENCE DEMONSTRATES THAT THE 

3SEVENTY PLATFORM IS NOT AN ATDS UNDER THE 

STATUTORY DEFINITION

To succeed on his TCPA claim, Plaintiff must show, as an element of the claim, that 

GoDaddy utilized an ATDS to send the text message at issue. See 47 U.S.C. § 227(b)(1)(A). 

The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce 

telephone numbers to be called, using a random or sequential number generator; and (B) to 

dial such numbers.” 47 U.S.C. § 227(a)(1) (emphasis added). It is undisputed that at all 

times relevant, the 3Seventy Platform did not have the current (or then-current) capacity to 

generate numbers using a random or sequential number generator capacity to generate and 

dial numbers via a “random or sequential number generator.” See SSUF 2-7. The FCC, 

however, has attempted to interpret the term “capacity” expansively to include the “future 

capacity” to generate and dial random or sequential numbers through changes in hardware or 

software—i.e., all “potential functionalities.” See 2015 Guidance at ¶ 11 and ¶ 16. The 

“rotary-dial phone” is the only type of equipment the FCC concedes cannot be converted into 

an ATDS.1 

 

1 Not surprisingly, the FCC’s incredibly overbroad and vague definition of what 

constitutes an ATDS generated a swift appeal to the D.C. Circuit Court of Appeals. In the 

pending matter of ACA International v. Federal Communications Commission, Case No. 15-

1211, the petitioner challenges the FCC’s guidance as arbitrary and capricious, an abuse of 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

As a result of the FCC’s decision to expansively broaden the term “capacity” in 

issuing its implementing regulations, the question of what the word “capacity” means in the 

TCPA’s statutory definition of an ATDS has played out to different results in courts across 

the country. Courts in the Ninth Circuit have almost uniformly rejected the FCC’s efforts to 

expand the definition of an ATDS device given the “clear and unambiguous” definition of an 

ATDS in the statutory language of the TCPA. See Satterfield, 569 F.3d at 951 (9th Cir. 

2009). Indeed, in recent years, the majority of the district courts in the Ninth Circuit have 

begun to apply a common sense standard recognizing that a piece of equipment’s capacity 

alone, without some showing that the functionality in question had been utilized, would not 

be sufficient to establish liability under the TCPA. See, e.g., Emanuel v. Los Angeles Lakers, 

Inc., No. CV 12-9936-GW SHX, 2013 WL 1719035 (C.D. Cal. Apr. 18, 2013); Gragg v. 

Orange Cab Co., Inc., 995 F. Supp. 2d 1189 (W.D. Wash. 2014); Marks v. Crunch San 

Diego, LLC, 55 F. Supp. 3d 1288 (S.D. Cal. Oct. 23, 2014); Glauser v. GroupMe, Inc., No. 

4:11-cv-02584, 2015 WL 475111 (N.D. Cal. Feb. 4, 2015). These courts have defined the 

term “capacity” to mean “present, not potential capacity,” pointing to the plain language of 

the statute and the potentially unlimited reach of the TCPA if the FCC’s broad interpretation 

of “capacity” was accepted. See id.

A notable outlier to the “present capacity” line of cases in the Ninth Circuit is the 

decision in Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129 (S.D. Cal. 2014), a case in which 

the court refused to grant summary judgment for Yahoo! despite clear evidence that the 

platform at issue did not have the present capacity to generate, store and dial random phone 

numbers as required by the TCPA. Id. at 1136. Key to that decision, however, was the 

Sherman court’s finding that Yahoo!’s SMS platform had the potential to become an 

autodialer given testimony from Yahoo! demonstrating that it was capable of writing new 

software to add a sequential or random number generator to the system. Id. In reaching its 

conclusion, the Sherman court relied on the broad interpretation of the term “capacity” 

 

discretion, and inconsistent with various constitutional provisions. See Def.’s Req. for 

Judicial Notice Ex. B, Amended Petition of ACA at 3 (ECF No. 21-3). 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

advanced by the FCC, despite clear Ninth Circuit authority holding the plain language of the 

TCPA to be “clear and unambiguous.” Satterfield, 569 F.3d at 951.

The approach taken in Sherman has been soundly rejected not only in the Ninth 

Circuit line of “present capacity” decisions noted above, but also by a number of other wellreasoned courts across the country. See, e.g., De Los Santos v. Millward Brown Inc., No. 

2014 WL 25 2938605, at *6. (S.D. Fla. June 30, 2014) (rejecting a broad definition of 

“capacity” as it would have no “outer limit,” as “virtually every telephone in existence, given 

a team of sophisticated engineers working doggedly to modify it, could possibly store or 

produce numbers using a random or sequential number generator”); accord Hunt v. 21st 

Century Mortgage Corp., No. 2:12-CV-2697-WMA, 2013 WL 5230061, at *4 (N.D. Ala. 

Sept. 17, 2013) (“The problem with this reasoning is that, in today’s world, the possibilities 

of modification and alteration are virtually limitless. For example, it is virtually certain that 

software could be written, without much trouble, that would allow iPhones ‘to store or 

produce telephone numbers to be called, using a random or sequential number generator, and 

to call them.’ Are the roughly 20 million American iPhone users subject to the mandates of 

§ 227(b)(1)(A) of the TCPA?”). It has also been rejected by the United States in briefs 

defending the TCPA’s constitutionality.2 See Defendant’s Request for Judicial Notice, Ex. 

A, United States Mem. In Supp. of The Constitutionality of The TCPA, filed in De Los 

Santos, 2014 WL 25 2938605 (S.D. Fla. Jan. 31, 2014) (ECF No. 54) at 10-11 & n.7

The decision in Marks v. Crunch San Diego, 55 F. Supp. 3d 1288 (S.D. Cal. 2014), is 

particularly instructive. In Marks, the defendant used a third-party SMS platform 

 

2 As further support for narrowly interpreting the term “capacity”, it bears noting that 

the United States filed a brief in De Los Santos defending the TCPA’s constitutionality. In 

doing so, it took the position that interpreting the “automatic telephone dialing system” 

definition as requiring random or sequential number generation capacity safeguards the 

statute from unconstitutional overbreadth. See United States Mem. In Supp. of The 

Constitutionality of The TCPA, De Los Santos (S.D. Fla. Jan. 31, 2014) (ECF No. 54) at 10-

11 & n.7. Specifically, the United States cited with approval Hunt v. 21st Mortgage Co., 

which held that to satisfy the statutory definition, the equipment at issue must “have a 

present capacity, at the time the calls were being made, to store or produce and call numbers 

from a number generator.” Id. at 11 n.7 (quoting Hunt v. 21st Mortg. Corp., 2013 WL 

5230061 at *4.

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

administered by Textmunication to send promotional text messages to its members’ and 

prospective customers’ cell phones. Id. at 1290. Textmunication submitted a declaration 

indicating that the SMS platform at issue did not have the capacity to randomly or 

sequentially generate numbers, but rather simply stored numbers gathered through human 

intervention. Id. As described by Textmunication, phone numbers were inputted into the 

SMS platform by one of three methods: “(1) when Crunch or another authorized person 

manually upload[ed] a phone number onto the platform; (2) when an individual respond[ed] 

to a Crunch marketing campaign via text message (a “call to action”); and (3) when an 

individual manually input[ted] the phone number on a consent form through Crunch’s 

website.” Id. at 1291–92. 

In a manner similar to the process outlined by 3Seventy in describing the operation of 

the 3Seventy Platform, in order to send the text messages at issue in Marks, an employee of 

the third party SMS platform provider was required to process and select the desired phone 

numbers, generate the messages, and then manually select the date(s) for messages to be 

sent. Id. at 1291–92. The SMS platform then sent the text messages to the selected phone 

numbers on the specified date and stored the numbers on the system to be used in later 

offers. See id.

In light of the process set forth above, the defendant in Marks moved for summary 

judgment on the narrow but dispositive issue that the alleged text messages were not sent 

using an ATDS and as such, the TCPA did not apply. In relying on the Ninth Circuit’s prior 

ruling that the definition of an ATDS set forth in the TCPA is “clear and unambiguous,” the 

Marks court rejected the broad interpretation of the term “capacity” advanced by the FCC. 

Id. at 1291-1292. In doing so, the court determined that because the third party platform at 

issue did not have the present capacity to produce phone numbers using a random or 

sequential number generator, it was not an ATDS under the TCPA.3 See id.; Satterfield, 569 

 

3

In doing so, the court also found that the FCC lacked the authority by which it had 

previously purported to broaden the statutory definition of an ATDS. In 2003, the FCC 

broadly interpreted the definition of an ATDS to include “any equipment that has the 

specified capacity to generate numbers and dial them without human intervention regardless 

of whether the numbers called are randomly or sequentially generated or come from calling 

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F.3d at 951; accord Dominguez v. Yahoo!, 8 F. Supp. 3d 637 (E.D. PA 2014) (granting 

summary judgment where the plaintiff failed to offer evidence that the system at issue had 

the capacity to randomly or sequentially generate telephone numbers, “as opposed to simply 

storing telephone numbers”). As such, the defendant was entitled to summary judgment on 

the plaintiff’s TCPA claim.

Since the Marks decision, a number of district courts in the Ninth Circuit, and across 

the country, have dismissed similar cases at the summary judgment stage by relying on the 

express language of the TCPA to determine whether a certain SMS platform qualifies as an 

ATDS. The result should be no different here. It is undisputed that at all times relevant, the 

3Seventy Platform did not have the current (or then-current) capacity to generate numbers 

using a random or sequential number generator and dial numbers via a “random or 

sequential number generator.” See SSUF 2-7. As such, the Court should grant GoDaddy’s 

motion for summary judgment.

C. FCC GUIDANCE IS IMMATERIAL TO THE COURT’S 

DETERMINATION AS TO WHETHER THE 3SEVENTY PLATFORM 

IS AN ATDS UNDER THE TCPA

As set forth above, the TCPA defines an ATDS as equipment “which has the 

capacity—(A) to store or produce telephone numbers to be called, using a random or 

sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). 

Although “the FCC initially interpreted the statute as specifically targeting equipment that 

placed a high volume of calls by randomly or sequentially generating the numbers to be 

dialed”—an interpretation consistent with the plain language of the statute—that 

interpretation has changed over time. The FCC guidance, including the most recent 2015 

Guidance, collectively holds that in order to qualify as an ATDS under the TCPA, equipment 

 

lists.” In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 

1991, 27 F.C.C.R. 15391, 15392 n. 5 (2012) (emphasis added). The court found that the 

FCC’s 2003 commentary “change[d]” and “modif[ied]” the TCPA’s definition of an ATDS, 

which the FCC did not have authority to do because 47 U.S.C. section 227(a)—unlike 

section 227(b) and section 227(c)—“does not include a provision giving the FCC rulemaking 

authority.” Marks, 55 F. Supp. At 1291. 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

must be able to store or produce numbers that themselves are randomly or sequentially 

generated ‘even if it not presently used for that purpose.’” See 2015 Guidance at ¶ 11 and ¶ 

16. 

GoDaddy does not dispute that the FCC has the authority to prescribe regulations 

under the TCPA. See 48 U.S.C. § 227(b)(2). Nor does GoDaddy dispute that courts defer to 

such regulations “when an agency properly exercises its authority . . . to interpret an 

ambiguous statute, and then promulgate rules and regulations carrying the force of law.” 

Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1320 (11th Cir. 2011)

(citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 827, 843--44 

(1984)). But courts “do not apply Chevron deference . . . when a statutory command of 

Congress is unambiguous . . . . Where [as here] the statutory language is clear, agency 

regulations have no effect.” Id.

As a result, FCC guidance that seeks to interpret or clarify the statutory definition of 

an ATDS is not binding on this Court. In contrast, the Ninth Circuit’s decision in Satterfield

is binding on this Court. In Satterfield, the Ninth Circuit determined the statutory definition 

of an ATDS to be “clear and unambiguous,” and as such, deference to FCC guidance under 

Chevron inappropriate. See Satterfield, 569 F.3d at 951, 953 (stating that “‘[the court’s] 

inquiry begins with the statutory text, and ends there as well if the text is unambiguous’” and 

where “Congress spoke clearly, we need not look to the FCC’s interpretations”). Following 

Satterfield, “[w]hen evaluating the issue of whether equipment is an ATDS, the statute’s 

clear language mandates that the focus be on whether the equipment has the capacity ‘to 

store or produce telephone numbers to be called, using a random or sequential number 

generator.’” Id. 

Because the statutory definition of an ATDS is clear and unambiguous, the statute, 

under binding Ninth Circuit law, must be interpreted according to its plain meaning. See 

Satterfield, 569 F.3d at 951, 953. The Court should not—as Plaintiff would presumably 

have the Court do—rewrite the statute in an effort to further what Plaintiff believes to be the 

purpose behind the TCPA. See Myers v. Toojay’s Mgmt. Corp., 640 F.3d 1278, 1286 (11th 

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OR IN THE ALTERNATIVE, MOTION TO STAY

Cir. 2011) (“[W]e interpret and apply statutes, not congressional purposes. If the 

requirement of having a random or sequential number generator is to be done away with, that 

decision is for Congress to make, not for the courts to make. We are not allowed to add or 

subtract words from a statute; we cannot rewrite it.”) (internal quotation marks and alteration 

omitted).

The statutory definition of an ATDS is clear: it requires that equipment have the 

capacity to store or produce telephone numbers to be called using a random or sequential 

number generator and to dial such numbers. Satterfield, 569 F.3d at 951. Any suggestion 

that equipment need not have this capacity must be rejected.

D. EVEN IF FCC GUIDANCE IS APPLICABLE TO THIS COURT’S 

DETERMINATION, UNDISPUTED EVIDENCE DEMONSTRATES 

THAT THE 3SEVENTY PLATFORM IS NOT AN ATDS UNDER THE 

FCC’S INTERPRETATION OF THE STATUTORY DEFINITION

GoDaddy contends that the Court need not consider the FCC’s interpretation of the 

statutory ATDS definition in reaching its determination as to whether the 3Seventy Platform 

is an ATDS due to the Ninth Circuit’s decision in Satterfield. To the extent the Court 

disagrees, GoDaddy submits that neither the parties nor the Court need engage in a lengthy 

debate over whether the 3Seventy Platform has the “potential capacity” to generate random 

or sequential numbers, as that phrase has been interpreted in FCC guidance. Such a 

determination is irrelevant to this matter given FCC guidance that defines the basic function 

of an ATDS as the capacity—regardless of whether present or potential—to dial numbers 

without human intervention. See 2015 Guidance at ¶ 17; accord Glauser v. GroupMe, Inc., 

No. C 11-2584 PJH, 2015 WL 475111, at *6 (N.D. Cal. Feb. 4, 2015). Since the undisputed 

evidence demonstrates that the 3Seventy Platform requires human intervention to send text 

messages, the FCC guidance on which Plaintiff will likely rely does not bar this Court from 

granting summary judgment in favor of GoDaddy. See SSUF 8-13. To the contrary, FCC 

guidance compels such a ruling.

///

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The FCC has declined to establish a bright-line rule for determining how much human 

intervention is necessary to take equipment out of the definition of an ATDS, instead leaving 

the issue for the courts to decide on a “case-by-case” basis. See FCC’s 2015 Guidance at ¶ 

17. In the Ninth Circuit, recent cases decided outside of a predictive dialer context hold that 

“human intervention” is not limited to the mere “dialing” of a number, but must be analyzed 

vis-à-vis the platform as a whole. Indeed, the Marks decision highlighted above is notable 

not only for its treatment of the capacity issue, but also because the court alternatively found 

that the SMS platform at issue was not an ATDS because it was only capable of sending a 

text message through methods that “require[d] human curation and intervention.” Marks, 55 

F. Supp. 3d at 1292. 

Again, as described by 3Seventy’s corporate representative, the 3Seventy Platform 

operates in a manner similar to that at issue in the Marks case but with additional levels of 

human intervention. The 3Seventy Platform will not send a text message without required 

human intervention at each of the following stages: (a) selecting telephone numbers to 

receive a message, (b) drafting message content, (c) determining the timing of a message, 

and (d) scheduling the date and time to transmit a message and (d) entering a Captcha to 

approve and authorize sending the message. See SSUF 8-13.

In addition to Marks, a number of other recent decisions in the Ninth Circuit support 

the conclusion that where, as with the 3Seventy Platform, human intervention is required to 

(a) select telephone numbers to receive a message, (b) draft a message, (c) determine the 

timing of a message, and (d) click ‘send’ to transmit a message, and such conduct is 

sufficient to defeat a TCPA claim: 

 Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 WL 4941781 (N.D. Cal. Aug. 

19, 2015) (holding that the system at issue was not an ATDS because “drafting 

the message, determining the timing of the message, and clicking ‘send’ on the 

website to transmit the message to Plaintiff” constituted “human intervention”)

 47 v. Shopkick, Inc., Case No. C-14-2464-MMC, 2015 WL 5013299 (N.D. 

Cal. Aug. 24, 2015) (finding that defendant did not violate the TCPA, where 

Shopkick users were required to take multiple affirmative steps for Shopkick to 

send invitational messages)

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 McKenna v. Whispertext, LLC, No. 5:14-cv-00424-PSG, 2015 WL 5264750, at 

*3 (N.D. Cal. Sept. 9, 2015) (holding the system at issue was not an ATDS 

because selecting telephone numbers to which messages were to be sent 

constituted human intervention)

 Derby v. AOL, Inc., Case No. 5:15-cv-00452-RMW, 2015 WL 5316403, at *3-

4 (N.D. Cal. Sept. 11, 2015) (holding that a user changing his or her status or 

“send[ing] a text message back to defendant’s [] system” triggering a text 

message constituted human intervention)

 Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111, at *6 (N.D. 

Cal. Feb. 4, 2015) (finding human intervention was involved in using the 

GroupMe application where “Welcome Texts” that were automatically 

triggered by a user action “were sent to plaintiff as a direct response to the 

intervention of [] the [] group creator” when he added plaintiff to the group)

 Gragg v. Orange Cab Co., No. 12-0576, 2014 WL 494862, at *3 (W.D. Wash. 

Feb. 7, 2014) (granting defendant summary judgment and finding that a 

computerized taxi dispatch system did not qualify as an ATDS because the 

driver’s input was necessary before the system could draft and send a message: 

“[t]he system is able to dial and transmit the dispatch notification only after the 

driver has physically pressed ‘accept’: human intervention is essential.”)

The reasoning set forth above has also been adopted by courts in other circuits. See, e.g.,

Modica v. Green Tree Servicing, LLC, No. 14 C 3308, 2015 WL 1943222, at *3 (N.D. Ill. 

Apr. 29, 2015) (granting defendant summary judgment and finding that its representative 

could not have used a computer program to call plaintiffs without human intervention where 

defendant’s representative could only access the equipment by logging into the program; 

stating that although “the additional step of logging into the [equipment] is minimal,” it was 

nonetheless sufficient human intervention).

Given the undisputed evidence regarding the operation of 3Seventy’s Platform and 

the extent of human intervention involved, the Court should grant GoDaddy’s motion for 

summary judgment.

E. IF THE COURT IS INCLINED TO DENY GODADDY’S MOTION FOR 

SUMMARY JUDGMENT IN RELIANCE ON THE FCC’S 

“POTENTIAL CAPACITY” GUIDANCE, GODADDY MOVES THIS 

COURT FOR THE ISSUANCE OF A STAY 

As detailed above, GoDaddy submits that the Court need not reach the issue of 

whether to apply the FCC’s guidance on “capacity” in order to resolve the instant motion 

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given undisputed evidence that demonstrates the 3Seventy Platform (a) does not have present 

capacity to randomly or sequentially generate numbers, as required by the statutory 

language, and (b) even if it could be modified to have such capacity, the 3Seventy Platform 

requires human intervention to send the text messages at issue. However, to the extent the 

Court is inclined to deny summary judgment due to a question over whether the 3Seventy 

Platform has the “potential capacity” to store or produce numbers to be called using a 

random generator, as that term has been interpreted by the FCC, GoDaddy respectfully 

requests that the Court stay the litigation of this matter pending the Ninth Circuit’s 

determination in Marks v. Crunch San Diego, No. 14-56834 (the “Marks Appeal”). The 

Marks Appeal was recently stayed by the Ninth Circuit sua sponte pending the issuance of a 

decision in ACA International v. Federal Communications Commission, et al., No. 15-1211 

(the “ACA Int’l Appeal”). 

As relevant to this matter, the ACA Int’l Appeal calls into question the FCC’s 2015 

Guidance, which determined that a piece of equipment has sufficient capacity to qualify as 

an ATDS if it has the “potential” capacity to store or produce numbers to be called using a 

random generator, but not if it only has the “theoretical” capacity. See 2015 Guidance at ¶ 

11 and ¶ 16. The 2015 Guidance does not clarify the difference between “potential” and 

“theoretical” capacity. Id. The D.C. Circuit will determine whether the FCC’s treatment of 

the term “capacity” in defining ATDS is “arbitrary, capricious, [or] an abuse of discretion,”

and thus results in an approach that does not comport with the caller’s constitutional rights of 

due process and freedom of speech, and that disregards the applicable statute. Def.’s Req. 

for Judicial Notice Ex. B, Amended Petition of ACA at 3 (ECF No. 21-3). In light of the 

potential impact of the ACA Int’l Appeal on one of the grounds for appeal raised in the 

Marks Appeal, the Ninth Circuit issued a sua sponte stay of that matter pending the D.C. 

Circuit’s forthcoming decision. See Def.’s Req. for Judicial Notice, Ex. C, Order Staying 

Appeal (ECF No. 68).

A district court has “broad discretion to stay proceedings as an incident to its power to 

control its own docket,” i.e. to grant a “Landis stay.” Clinton v. Jones, 520 U.S. 681, 706 

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OR IN THE ALTERNATIVE, MOTION TO STAY

(1997) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). The Court, therefore, may 

“find it . . . efficient for its own docket and the fairest course for the parties to enter a stay of 

an action before it, pending resolution of independent proceedings which bear upon the 

case.” Leyva v. Certified Gorcers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). In 

exercising its discretion in determining whether to grant a Landis stay, this Court must weigh 

the competing interests of the various parties that may be affected by the decision to grant or 

refuse to grant the stay, including (1) the possible damage or harm to the non-moving party 

which may result from granting the stay; (2) the hardship or inequity the moving party may 

suffer in being required to go forward with the case if the request for a stay is denied; and (3) 

“the orderly course of justice measured in terms of the simplifying or complicating of issues, 

proof, and questions of law which could be expected to result from a stay.” Lockyer v. 

Mirant Corp., 398 F.2d 1098, 1110 (9th Cir. 2005). 

To the extent this Court believes it is obliged to decide the issue of whether the 

3Seventy Platform should be evaluated for its potential capacity pursuant to the FCC’s 

guidance, GoDaddy submits that the ACA Int’l and Marks Appeals bear directly on the issue

and compel the issuance of a stay. Given that the ACA Int’l and Marks Appeals have been 

briefed and argued, the appeals are not likely to remain pending for an extended period of 

time and the possible prejudice to Plaintiff in granting the requested stay is minimal. See 

Bay Area Surgical Group, Inc. v. Aetna Life Ins. Co., No. 5:13-CV-05430-EJD, 2014 WL 

2759571, at *5 (N.D. Cal. June 17, 2014); see also Nussbaum v. Diversified Consultants, 

Inc., No. 15-CV-600, 2015 WL 5707147, at *2 (D. N.J. Sept. 28, 2015) (“Because delay 

results inherently from the issuance of a stay, courts have found that mere delay does not, 

without more, necessitate a finding of undue prejudice and clear tactical disadvantage.”) 

In contrast, hardship to GoDaddy and considerations of judicial economy weigh in 

favor of a stay. If the case is not stayed, GoDaddy may suffer hardship in preparing for class 

certification and trial based solely on the Court’s determination that issues of fact exist as to 

the “potential” capacity of the 3Seventy Platform. Lastly, granting a stay may simplify the 

issues in this case and conserve judicial resources. Any order by this Court which is issued 

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OR IN THE ALTERNATIVE, MOTION TO STAY

in reliance on the FCC’s guidance requiring an evaluation of the 3Seventy Platform’s 

“potential” capacity will be called into question if the D.C. Circuit decides against the FCC

and the Ninth Circuit renders its decision in Marks accordingly. Therefore, the Court and 

both parties will benefit from a clarification of the applicable law. See Provo v. Rady 

Children’s Hosp. San Diego, 2015 WL 6144029, *1 (S.D. Cal. July 29, 2015).

V. CONCLUSION

In light of the foregoing, GoDaddy respectfully requests the Court grant its Motion for 

Summary Judgment as to Plaintiff’s sole claim for violation of the TCPA. To the extent the 

Court is inclined to deny GoDaddy’s Motion for Summary Judgment in reliance on the 

FCC’s potential capacity guidance, GoDaddy respectfully requests the Court grant its 

alternative Motion to Stay pending the Ninth Circuit’s decision in Marks v. Crunch San 

Diego, No. 14-56834.

Dated: March 31, 2017 COZEN O’CONNOR

Aaron M. McKown

Paula L. Zecchini

By: /s Paula L. Zecchini

Paula L. Zecchini

Attorneys for Defendant

GODADDY.COM, LLC 

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DEFENDANT GODADDY.COM, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, 

OR IN THE ALTERNATIVE, MOTION TO STAY

CERTIFICATE OF SERVICE

The undersigned hereby certifies, under penalty of perjury under the laws of the State 

of Arizona that I electronically filed the foregoing document with the Clerk of the Court 

using the CM/ECF system which will send notification of such filing to the following:

Phillip A. Bock

Tod A. Lewis

James M. Smith

BOCK, HATCH, LEWIS & 

OPPENHEIM, LLC

134 N LaSalle Street, Suite 1000

Chicago, IL 60602

phil@classlawyers.com

tod@classlawyers.com

jim@classlawyers.com

Counsels for Plaintiff John Herrick

Trinette G. Kent

KENT LAW OFFICES

10645 N Tatum Boulevard, Suite 

200-192

Phoenix, AZ 85028

tkent@kentlawpc.com

SIGNED AND DATED this 31st day of March, 2017 at Seattle, Washington.

COZEN O’CONNOR

By: /s/ Paula L. Zecchini 

Paula L. Zecchini

Case 2:16-cv-00254-DJH Document 79 Filed 03/31/17 Page 24 of 24