In Fitzhenry v. Career Education Corporation, 2016 WL 792312, at *3 (N.D.Ill., 2016), Judge Darrah held that a TCPA Plaintiff properly pleaded derivative liability in a TCPA class action, and held that a professional TCPA Plaintiff could still be a proper class representative.  Judge Darrah held that the facts as pleaded adequately pleaded derivative liability.

Defendants argue that Plaintiff has not adequately pled facts to hold CEC liable for the CTU call or the Education Network call. However, Plaintiff’s SAC pleads several factual allegations that connect CEC to both the CTU and Education Network calls. First, Plaintiff claims that he received a telemarketing call on his cellular phone from an employee who purported to be calling on behalf of EduTrek. (Dkt. 65 ¶ 18, 20.) This employee also informed Plaintiff that the call was made using an automatic dialing system. (Dkt. 65 ¶ 19.) On that same day, Plaintiff claims he received a call from an employee of CTU also using an automatic dialing system. (Dkt. 65 ¶ 28, 32.)  Plaintiff alleges several facts that imply a connection between CEC and CTU. First, CEC holds itself out as the employer of faculty and staff hired to work at CTU and its other institutions, including a position of the admissions and marketing departments. (Dkt. 65 ¶ 38.) On the Career Education Corporation website under the heading “Working at Career Education,” the job listings include a position as “Admissions Advisor – CTU Colorado Springs.” Id. Plaintiff asserts that he called CEC to complain about the telemarketing phone calls and was told by a CEC representative that no one else from CTU would call him, and he would be placed on CEC’s do-not-call list. (Dkt. 65 ¶ 42.) When construed in a light most favorable to the Plaintiff, the SAC asserts factual allegations that connect both telephone calls to CEC.  Defendants also argue that Plaintiff consented to receive the CTU call. Plaintiff did consent to receiving a live call. However, the TCPA does not just forbid the use of artificial or prerecorded calls, but also the use of an automated dialing system. Plaintiff may have consented to be called live, but he did not consent to calls made by an ATDS. Thus, the Complaint sufficiently pleads facts that support his claim of violations of the TCPA. Specifically, Plaintiff alleges that CTU and Education Network used an automated dialing system, on behalf of CEC, to contact Plaintiff.

Judge Darrah held that a professional TCPA Plaintiff still could adequately plead a class action.

Defendants argue that determining whether each putative class member provided consent to be called by or on behalf of CEC would require an individualized inquiry. Defendants further argue that the proposed class definition would require individualized inquiries to determine whether each telephone number dialed was assigned to a cellular telephone at the time of the call. Both of these arguments are unpersuasive. Defendants’ unsupported speculation that some of the proposed class members may have consented to receive calls or that some telephone numbers dialed were not assigned to class members’ cellular telephone numbers, does not preclude class certification at the pleading stage. Further, as noted by Plaintiff, consent by a putative class member is an affirmative defense that Defendants must plead and prove.  Defendants also argue that there is “individuality inherent” in a call with a live representative because the purpose of each call could be different and the purpose of the call creates a distinction between the different requirements for consent. Again, this is an unsupported speculation based on the assumption that some of the proposed class members may have consented to receive calls.  Defendants next argue that Plaintiff is not an adequate class representative pursuant to Rule 23(a)(4). Defendants allege in their Motion to Strike that Plaintiff is a “professional TCPA plaintiff” who sought to increase the volume of telemarketing calls he receives in order to increase his revenue from his TCPA lawsuits, and that this subjects him to particular defenses not applicable to other putative class members. In particular, Defendants note that Plaintiff is subject to a defense of consent and attacks regarding his overall credibility as a witness and class representative because he consented to a live call from CTU and feigned interest in educational programs in order to receive these calls. Defendants provide no legal support for this argument regarding Plaintiff’s credibility. Moreover, prior to discovery, a challenge to the adequacy of the class representative is inappropriate at the pleadings stage. Defendants’ argument that Plaintiff is not a member of the putative class similarly fails. Defendants reiterate their arguments that Plaintiff did not properly allege that he received calls from CEC or EduTrek. As noted above, Plaintiff’s Complaint sufficiently alleges that the calls at issue were made on behalf of Defendants, and thus that Plaintiff is a member of the putative class.  Finally, Defendants argue that Plaintiff cannot properly assert class claims pursuant to Rule 23(b)(2). Rule 23(b)(2) permits class certification if Rule 23(a) is satisfied and if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “When the main relief sought is injunctive or declaratory, and the damages are only ‘incidental,’ the suit can be maintained under Rule 23(b)(2).” In re Allstate Ins. Co., 400 F.3d 505, 507 (7th Cir. 2005). Defendants contend that each potential plaintiff is entitled to statutory damages for each violation of the TCPA and are not “incidental” thus, the proposed class cannot be certified under Rule 23(b)(2). However, at this stage in the proceedings, whether Defendants’ damages are “incidental” is again, an assumption that is difficult to make without the benefit of discovery or further litigation. To strike Plaintiff’s class claims because of a speculative assertion regarding each class member’s possible entitlement to damages would be premature. Thus, Defendants’ Motions to Strike Class Allegations are denied.