In Molinari v. Fin. Asset Mgmt. Sys., No. 18 C 1526, 2020 U.S. Dist. LEXIS 134045 (N.D. Ill. July 29, 2020), Judge Ellis denied class certification in a TCPA/FDCPA class action

Under Rule 23(a)(2), a party seeking class certification must show commonality by identifying “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “The key to commonality is ‘not the raising of common ‘questions’ . . . but, rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.'” Orr v. Shicker, 953 F.3d 490, 498-99 (7th Cir. 2020) (quoting Wal-Mart, 564 U.S. at 350); see also Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 550 (7th Cir. 2016) (“[A] prospective class must articulate at least one common question that will actually advance all of the class members’ claims.”). The predominance requirement, in turn, allows for certification only if the common questions of law or fact “predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). This requirement is similar to the commonality requirement but “far more demanding.” Messner, 669 F.3d at 814 (citation omitted); see also Pavone v. Meyerkord & Meyerkord, LLC, 321 F.R.D. 314, 319 (N.D. Ill. 2017) (noting that commonality and predominance are “closely related” and “can ‘overlap in ways that make them difficult to analyze separately'” (citation omitted)). The commonality and predominance analyses require a court to consider the elements of the plaintiff’s class-based claims. See Phillips, 828 F.3d at 552 (“A determination of commonality often requires a precise understanding of the nature of the plaintiffs’ claims.”); Messner, 669 F.3d at 815 (“Analysis of predominance under Rule 23(b)(3) ‘begins, of course, with the elements of the underlying cause of action.'” (citation omitted)). Here, Molinari sought to certify one TCPA class to pursue claims based on a violation of 47 U.S.C. § 227(b)(1)(A)(iii) and a violation of 47 C.F.R. § 64.1200(b)(1). He also sought to certify two FDCPA classes to pursue claims based on almost a dozen FDCPA sections or subsections: 15 U.S.C. §§ 1692b(1)-(2); 1692c(a)(1), (b); 1692d and 1692d(5)-(6); 1692e and 1692e(2), (14); and 1692f.7 Yet, in arguing commonality, Molinari only addressed the TCPA-based claims; he did not once mention any of the aforementioned FDCPA provisions or, even more generally, the FDCPA. Molinari likewise gave short shrift to his proposed FDCPA classes and FDCPA-based claims in arguing predominance. His predominance argument with respect to the FDCPA consisted of the following: As to the FDCPA claims, predominance is satisfied where the issue before the court was whether the defendant’s actions violated the FDCPA, not whether that [sic] violations damaged the proposed class members. McMahon v. LVNV Funding, LLC, 807 F.3d 872, 875 (7th Cir. 2015). See also, Haroco, Inc. v. American Nat’l Bank & Trust Co., 121 F.R.D. 664, 669 (N.D. Ill. 1988) (claims arising out of standard documents present a “classic case for treatment as a class action”) (citation omitted). As discussed above[,] FAMS violated the FDCPA. Doc. 52 at 13 (emphasis in original). Notably, though, this argument does not address how Molinari’s two proposed FDCPA classes relate to the various identified FDCPA provisions. For instance, Molinari’s proposed FDCPA classes do not distinguish between class members who were contacted about a debt they owe (a debtor) and those who were contacted about a debt they do not owe (a non-debtor). Indeed, Molinari has asserted that “this case is not about whether Plaintiff [or] the putative class members are or  are not [the] debtors in question” and that “[w]hether the person called is the debtor (or not) is not an element or basis for certification.” Doc. 68 at 1, 12. However, several of the FDCPA claims identified by Molinari do, in fact, hinge on whether the class member is a debtor or, in the language of the FDCPA, a “consumer.” See 15 U.S.C. § 1692a(3) (defining “consumer” as “any natural person obligated or allegedly obligated to pay any debt”). Sections 1692b and 1692c(b) only apply to communications with individuals other than the debtor. Id. § 1692b (“Any debt collector communicating with any person other than the consumer . . . .”); id. § 1692c(b) (“[A] debt collector may not communicate . . . with any person other than the consumer . . . .”). On the other hand, § 1692c(a)(1) only applies to communications with debtors. Id. § 1692c(a) (“[A] debt collector may not communicate with a consumer . . . .”). Whether a particular class member owes a debt is an individualized question that, at least for claims under these statutory provisions, may predominate over any common issues. See 7 Newberg on Class Actions § 21:6 (“FDCPA class actions have failed the 23(b)(3) predominance inquiry when significant individualized information is required to prove a violation was committed with respect to each putative class member.”). In addition, 15 U.S.C. § 1692b(1)-(2) requires the debt collector to “identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer” and prohibits the debt collector from stating that the “consumer owes any debt.” But determining whether these requirements are met for the FDCPA LiveVox Class would require asking each individual class member whether the call from FAMS resulted in a conversation and, if so, whether the conversation disclosed the information required or prohibited by § 1692b(1)-(2). These too are questions that require “significant individualized information” to answer and, as such, could predominate over any issues common to the FDCPA LiveVox Class for a § 1692b claim. See 7 Newberg on Class Actions § 21:6. Of course, FDCPA-based claims do often present common issues of law or fact that predominate over any issues that affect only individual members. See 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 2:21 (16th ed. Oct. 2019 update) (“Because FDCPA actions typically arise out of substantially similar debt collection practices, courts have frequently held that questions common to class members predominate, making Rule 23(b)(3) certification appropriate.”). The same is true for TCPA-based claims. See Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013) (“Class certification is normal in litigation under § 227, because the main questions . . . are common to all recipients.”). Even so, it is still Molinari’s burden to demonstrate that all his proposed classes satisfy the commonality and predominance requirements for the particular TCPA-based and FDCPA-based claims he seeks to pursue for each class. See Priddy, 870 F.3d at 660; Messner, 669 F.3d at 811. To that end, if Molinari renews his motion for class certification, he should ensure that he “connect[s] the common evidence” he proposes to use for each proposed class “to the elements required to make a prima facie showing for each cause of action” that he wishes to pursue on behalf of that class. See T.S v. Twentieth Century Fox TV, 334 F.R.D. 518, 2020 WL 247463, at *12 (N.D. Ill. 2020).