Illinois Federal Court Finds That Individualized "Consent" Issues Doom TCPA Class Action

In Jamison v. First Credit Services, Inc., 2013 WL 3872171 (N.D. Ill. July 29, 2013), the U.S. District Court for the Northern District of Illinois denied a motion for reconsideration filed by Plaintiff. Plaintiff's motion asked the court to reconsider its earlier denial of class certification of a Telephone Consumer Protection Act ("TCPA") action. Jamison involves an alleged violation of the TCPA after a debt collector, acting on behalf of American Honda Finance Corporation, allegedly called Plaintiff's cellular telephone multiple times without consent. Plaintiff filed a complaint on behalf of a class defined to include any person whose cell phone number was obtained via skip tracing methods and was subsequently called by the debt collector or Honda using an automatic dialing system or an artificial or prerecorded voice with respect to a debt owed to Honda. The court denied the motion for class certification for three reasons: (1) Plaintiff had a felony conviction that made him unfit to serve as the class representative; (2) Plaintiff failed to satisfy the "predominance" requirement of Federal Rule of Civil Procedure 23(b)(3); and (3) the proposed class was overbroad and not ascertainable. Plaintiff contended that all three grounds were incorrect and should be considered. The court, noting the extraordinary nature of motions for reconsideration, disagreed. Of interest is the court's handling of the second and third grounds. The "predominance" and "ascertainability" requirements of class certification have recently become contentious issues in recent TCPA cases. Rule 23(b)(3) of the Federal Rules of Civil Procedure requires that class actions only be maintained if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members. . . ." The Court's opinion that Plaintiff failed to satisfy this "predominance" requirement was anchored in part in its finding that Plaintiff's proposed class definition would require the court "to conduct a series of mini-trials" to determine which of the proposed class members consented to be called on their cell phones. One element of a TCPA claim is a lack of express consent, and in cases where there is specific evidence of consent with respect to significant number of potential class members, class certification should not be granted. Because Honda was able to produce such evidence, the court held that class certification would only be proper if Plaintiff "articulated a method of employing generalized proof by which a court or jury could determine whether potential class members gave their consent." The court held that Plaintiff failed to meet that burden. Plaintiff's motion to reconsider was also denied for failure to provide an ascertainable class. Although ascertainability does not appear in Rule 23, courts have identified it as an implied element of class certification. This element requires that the class be identifiable as a class and membership within it must be determined by application of precise, objective criteria. The original opinion determined that the class was not sufficiently definite to warrant certification. Upon reconsideration, the court affirmed its earlier decision because Plaintiff's class definition could potentially include thousands of people who gave consent to receive phone calls on their cell phones. Distinguishing GM Sign v. Finish Thompson, No. 07 C 5953, 2009 WL 2581324 (N.D. Ill. Aug. 20, 2009), a TCPA case in which the court held that the issue of consent did not render a class definition unascertainable, the Jamison opinion held that the determining factor was whether there is evidence that a significant number of potential class members consented to receiving calls. In GM Sign v. Finish Thompson, the court specifically found that there was no evidence that any potential class member consented to receiving the alleged communication. Conversely, the Jamison opinion noted that 1,200 of the 2,887 wireless phone numbers that were potentially at issue belonged to persons that likely consented to such calls. This decision may come as a relief to some businesses troubled by the recent decision in Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 1283881, 11-cv-61357 (S.D. Fla. March 26, 2013), which granted class certification in a similar TCPA action. For more information, please see Alan Leeth and Nick Agnello's recent Consumer Finance Litigation blog post regarding the Southern District of Florida's holding in Manno. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

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