A federal court in Chicago recently denied class certification in a case under the Telephone Consumer Protection Act (“TCPA”), providing a potential road map for other defendants about how to win at this critical phase of a case.
The plaintiff, Kofi Jamison, sued American Honda Finance Corp. and one of its third-party debt collectors, claiming that the debt collector violated the TCPA, 47 U.S.C. § 227, by using an auto-dialer to call his cell phone to collect a debt that plaintiff’s sister owed to Honda Finance.1 Claiming that the debt collector obtained his and other cell phone numbers by running “skip traces,” plaintiff sought statutory damages of $500 for every allegedly improper call – or up to $1,500 per call if the violations were willful. Plaintiff sought to certify the case as a class action on behalf of nearly 3,000 others who also allegedly received automated debt collection calls from the debt collector on their cell phones.2 Honda Finance neither condoned nor was aware that the collector inadvertently called cell phones with an auto-dialer.
The district court denied plaintiff’s motion for class certification on three independent grounds. First, the court held that plaintiff’s felony conviction for “access device” fraud undermined his adequacy as a class representative under Rule 23(a).3 The court found a “strong likelihood” that plaintiff’s credibility issues could lead a jury to conclude that plaintiff “is a convicted fraudster who is seeking a windfall in litigation despite the fact that he never suffered any monetary loss.”4
Second, the court held that plaintiff had not satisfied the Rule 23(b)(3) requirement that common issues predominate over individualized issues in light of the critical issue of consent. Synthesizing prior case law on this point, the court held that “issues of individualized consent predominate when a defendant sets forth specific evidence showing that a significant percentage of the putative class consented to receiving calls on their cellphone.”5 Pointing to the specific evidence Honda Finance submitted to show that consent was a bona fide, individualized issue for a material portion of the putative class, the court concluded that if it certified a class, it “would have to conduct a series of mini-trials to determine the population of the class and to determine liability.”6 The court further held that individualized issues would predominate even if plaintiff redefined the class to exclude numbers appearing in Honda Finance’s records, since Honda Finance had shown there was no way to be sure whether a number appeared in its records without scouring the individual notes and audit logs for each account.
Third, the court held that plaintiff’s proposed class was not ascertainable. In addition to the issues about consent, the court held that plaintiff had failed to identify a workable means of identifying the subscribers to the cell phone numbers at issue. The court found that Honda Finance’s records and a public records database were insufficient to identify those subscribers because the former could not reliably identify the called party (as opposed to the person the debt collector intended to call, such as Mr. Jamison’s sister), and the latter could only identify current subscribers, not “the subscribers when the calls were made.”7
Sidley represents Honda Finance in this case.
Jamison underscores the importance of developing evidence – not just lawyers’ hypotheses – showing that consent in a TCPA class action is a meaningful and individualized issue. Specific evidence of individualized issues can prevent plaintiffs from meeting their burden of showing that common issues predominate over individualized issues. And for TCPA cases based on calls to cell phones, Jamison also offers the prospect of defeating class certification based on the difficulty in determining who the “subscriber” was at the time of the call.
1Jamison v. First Credit Services, Inc. and American Honda Finance Corp., 2013 WL 1248306, at *2, 2013 U.S. Dist. LEXIS 43978, at *4-5 (Mar. 28, 2013 N.D. Ill.).
2Jamison, 2013 WL 1248306, at *10, 2013 U.S. Dist. LEXIS 43978, at *30-32.
32013 WL 1248306, at *11-12; 2013 U.S. Dist. LEXIS 43978, at *33-39.
42013 WL 1248306, at *12, 2013 U.S. Dist. LEXIS 43978, at *38.
52013 WL 1248306, at *14, 2013 U.S. Dist. LEXIS 43978, at *43.
62013 WL 1248306, at *15, 2013 U.S. Dist. LEXIS 43978, at *46.
72013 WL 1248306, at *16-17, 2013 U.S. Dist. LEXIS 43978 at 51-56.
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