Illinois District Court Certifies Interlocutory Summary Judgment Order Addressing Meaning of Prior Express Consent and Debtor-Creditor Rule

Thrasher-Lyon v. CCS Commercial LLC, No. 11 C 04473, 2012 WL 5389722 (N.D. Ill. Nov. 2, 2012) Pending before the court was Defendants' Motion to Reconsider summary judgment granted in the named Plaintiff's favor, and alternative request for certification of the summary judgment decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Rejecting Defendant's Motion to Reconsider, the court did, however, certify its order for interlocutory appeal. Specifically, the court concluded that its summary judgment decision decided two controlling issues of law: (1) the interpretation of "prior express consent;" and (2) the scope of the debtor-creditor rule. Holding that the requirements for certification were satisfied the court noted the substantial grounds for difference of opinion regarding its interpretation of the "prior express consent." The court also noted that there is not abundant authority for either side's position, and many TCPA class actions have been quashed by application of the "creditor-debtor" gloss to prior express consent. While the court considered this interpretation to be based on a somewhat tortured view of the statute, it also characterized the FCC's conclusion that "prior express consent" can be implied as similarly tortured, adding that "[b]ecause FCC's statutory interpretation is plausible (particularly in light of the FCC's infidelity to the plain language of the statute), and the Seventh Circuit has not addressed the question, the Court finds that there are substantial grounds for difference of opinion."

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