A growing trend in TCPA litigation is for plaintiffs to bring putative TCPA class actions based on telephone calls that were meant for a third-party who actually provided consent for the call.   In a strongly worded opinion, Judge Virginia M. Kendall of the Northern District of Illinois recently dealt a blow to one such attempt by refusing to reconsider her denial of plaintiff’s motion for class certification due to issues with the putative class representative’s credibility and his inability to establish that the issue of consent was suitable for class treatment.  Jamison v. First Credit Services, Inc., et al.  No. 12-4415 (N.D. Ill. July 29, 2013).

Background

Plaintiff Kofi Jamison, a convicted felon, filed a putative class action based on phone calls made to his cellular telephone number in an attempt to collect a debt owed by his sister to American Honda Finance Corporation (“Honda”).  (Slip Op. at 1).  The debt collectors used by Honda (together with Honda, “Defendants”) performed a skip trace on Plaintiff’s sister, which yielded Plaintiff’s phone number, likely because his mother, not Plaintiff, was the named account holder.  (Slip Op. 1, 6-7).

Plaintiff sought to certify a class of “(1) all persons in the United States (2) to whose cellular telephone number (3) [Defendants] placed a non-emergency telephone call (4) using an automatic telephone dialing system  or an artificial or prerecorded voice (5) within 4 years of the complaint (6) with respect to a debt allegedly owed to [] Honda (7) where [Defendants] obtained the cellular telephone that was called via skip trace methods.”  Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, at *30-32 (N.D. Ill. Mar. 28, 2013).

On March 28, 2013, the court denied Plaintiff’s motion for class certification.  First, the Court found that Plaintiff would not be an adequate class representative because he had been convicted of a felony charge for access device fraud and therefore lacked credibility.  Id. at *35-38.  The potential for a jury to find that Plaintiff was not credible was heightened by the fact that he may not have suffered any monetary loss in connection with the calls because it appeared that his mother was the subscriber to the number called and therefore may have paid the bills.  Id.  Thus, “[t]he jury could reasonably conclude that Jamison is a convicted fraudster who is seeking a windfall in litigation despite the fact that he never suffered any monetary loss.”  Id. at *38.

Second, Plaintiff could not establish that common questions of law or fact predominated because many of the individuals within the proposed class had provided their cellular telephone to Honda when financing a vehicle purchase and therefore had consented to receive calls from it.  Id. at *39-48.  Honda would be required to undertake a labor intensive review of their internal business records to determine which proposed class members had provided the number at issue.  Id.

Third, the Court found that the proposed class was not ascertainable because it contained thousands of people who likely provided their cellular telephone number to Honda and therefore had no valid claim under the TCPA.  Id. at *49-50.  While Plaintiff attempted to modify the class definition to exclude such people, the Court found that the class would still not be ascertainable because the numbers called by Defendants may have been reassigned within the four year class period.  Id. at *52-53.  Therefore, “[t]he current subscribers of the cellphone numbers that were called over that period are likely not to be the same people as who were the subscribers when the calls were made.”  Id.

Opinion on Motion for Reconsideration

Rather than appealing the Court’s ruling, Plaintiff filed a motion for reconsideration.  Plaintiff argued that it was a mistake for the Court to consider the fact that his mother may have paid the bills and been the named account holder.  (Slip Op. at 5-6).  The Court disagreed, explaining that the TCPA only provides a cause of action for an individual who was the “called party,” which has been defined by the Seventh Circuit to mean “the person subscribing to the called number at the time the call is made.”  (See Slip Op. at 5-6 (citing Soppet v. Enhanced Recovery, Co., LLC, 679 F.3d 637, 640 (7th Cir. 2012))).  Because the subscriber is “the person who pays the bills of needs the line in order to receive other calls,” id. at 8, the Court ruled that whether Plaintiff or his mother actually paid the bills and whether Plaintiff suffered a monetary loss was a relevant consideration.

Plaintiff also argued that the Court erred in determining that common issues did not predominate because other district courts have certified classes that use a similar definition as the one proposed by Plaintiff and the Court inappropriately required Jamison to prove the merits of his case at the class certification stage.  (Slip. Op. 9-11 & n. 6).  The Court ruled that these arguments were not a valid basis for reconsideration.

The Court explained that “a determination of whether a class is certifiable for an alleged violation of the TCPA turns on the unique facts of each case.”  (Id. at 12).  Because Defendants had presented specific evidence showing that many of the putative class members had provided consent and because Plaintiff had failed to “articulate[] a method of employing generalized proof by which a court or jury could determine whether potential class members gave their consent,”  the Court was correct in determining that individual issues predominated.  (Id.)  Plaintiff could not cure this issue by excluding all putative class members whose phone numbers appeared in Honda’s business records because “it merely replaces one predominance problem with another.  Instead of conducting mini-trials to determine whether potential class members provided consent to Honda to be called on their wireless phone numbers, the Court would now be required to determine if each class member’s wireless number appeared in Honda’s records.”  (Id. at 14).

In regard to ascertainability, Plaintiff argued, that the Court was incorrect in focusing on the fact that a large number of the putative class members’ claims could be barred by an affirmative defense.  (Id. at *16).  Again, the Court rejected Plaintiff’s argument, ruling that where a putative class contains “a large number of potential members who have ‘no grievance’ with the defendant,” regardless of whether this was due to an affirmative defense or the plaintiff’s inability to meet an element of his claim, the class was not ascertainable.  (Id.)

Implications

The Court’s decision in Jamison illustrates the inherent difficulty of utilizing a putative class representative who received a telephone call from a business that intended to call someone else.  This is particularly true where the proposed class includes many individuals who voluntarily provided their cellular telephone number to the defendant and therefore arguably gave defendant their consent to be called.  In order to prevail on the issue of predominance in such cases, defendants must offer specific proof of consent at the class certification stage, not mere speculation.

Jamison also raises a standing issue – whether the plaintiff was the “called party” within the meaning of the TCPA – that could be used to weed out class representatives.  Parties are advised to request information during discovery in order to determine whether the named plaintiff is the subscriber to the number at issue.