In Buonomo v. Optimum Outcomes, Inc.— F.R.D. —-, 2014 WL 1013841 (N.D.Ill. 2014), Judge St. Eve granted in part and denied in part a TCPA defendant’s Motion to Strike class allegations in a wrong-party TCPA case.
One of the central issues in TCPA “wrong party” cases is whether the called party, which the Seventh Circuit has defined as “the person subscribing to the called number at the time the call is made,” see Soppet, 679 F.3d at 643, is the debtor who consented to receiving calls from the creditor. See id. at 640–41 (“Consent to call a given number must come from its current subscriber.”). In TCPA cases involving an actual debtor, on the other hand, the central issue is whether the debtor consented to receiving calls on his or her cell phone. See, e.g., Mitchem v. Illinois Collection Serv., Inc., No. 09 C 7274, 2012 WL 170968, at *2 (N.D.Ill. Jan. 20, 2012); Sengenberger v. Credit Control Servs., Inc., No. 09 C 2796, 2010 WL 1791270, at *4–5 (N.D.Ill. May 5, 2010); see also In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 ¶¶ 9–10 (Jan. 4, 2008) (“Because we find that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party, we clarify that such calls are permissible.” (footnote omitted)). Put differently, the central inquiry in a “wrong party” case is who provided consent, whereas the central inquiry in an actual debtor case is whether the plaintiff provided consent to receive calls on his or her cell phone. Accordingly, Buonomo fails to satisfy Rule 23(a)(3)’s typicality requirement because his “wrong party” claim lacks the same “essential characteristics” as the claims of actual debtors included in the proposed class. See Muro, 580 F.3d at 492. This ruling, however, does not end the Court’s inquiry. Although Buonomo’s proposed class is overbroad, this defect does not necessarily warrant striking Buonono’s class allegations altogether if they would sufficiently support a narrower proposed class consisting of only “wrong party” claimants. Cf. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir.2012) (noting that defining a class is “more of an art than a science” and problems regarding over-inclusive class definitions “can and often should be resolved by refining the class definition rather than by flatly denying class certification on that basis”). Therefore, the Court still must evaluate Optimum’s arguments regarding whether certification of a “wrong party”—only class is also improper.
On the predominance inquiry, the Court acknowledged the defendant’s arguments, but found them premature:
Optimum cites several TCPA cases in which courts have held that issues of individualized consent defeat predominance. ( See Def. Mem. at 10–13; Def. Reply Br. at 11–14.) Optimum’s reliance on those cases is misplaced. None of the cases addressed a motion to strike class allegations at the pleading stage before allowing the plaintiff to obtain class discovery. To the contrary, in each case, the court based its decision to deny class certification on the nature of the evidence obtained through discovery. See Gene & Gene LLC v. Biopay, LLC, 541 F.3d 318, 328–29 (5th Cir.2008) (evidence showed that the defendant obtained fax numbers from various sources, “its database entries [did] not consistently or accurately reflect whether a given recipient had consented to receive fax advertisements,” and the defendant obtained prior express consent from at least some recipients); G.M. Sign, Inc. v. Brink’s Mfg. Co., No. 09 C 5528, 2011 WL 248511, at *8 (N.D.Ill. Jan. 25, 2011) (determining that the plaintiff could not prove its case through generalized proof where the defendant “put forth evidence that it obtained the consent of Plaintiff and the other non-pre-existing-customer recipients of the faxes before sending them”); Vigus v. Southern Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 235–36 (S.D.Ill.2011) (“[T]he Casino has provided evidence that at least three telephone numbers identified using Vigus’ culling process did not indicate reassigned numbers. In addition, [the Casino] offers a number of reasons the identification process would not be conclusive ….” (emphasis in original)); Conrad v. General Motors Acceptance Corp., 283 F.R.D. 326, 329–330 (N.D.Tex.2012) (noting that the parties had conducted class discovery, including sampling the defendant’s call records, before the court denied class certification); Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D. 574, 578 (S.D.Cal.2013) (the differing circumstances under which the proposed class members provided their cell phone numbers to the defendant were “sufficiently varied to provide dissimilar opportunities for the expression of consent”).FN3 See also Gannon v. Network Tele. Servs., Inc., No. CV 12–9777–RGK (PJWx), 2013 WL 2450199, at *2–3 (C.D.Ill. June 5, 2013) (finding that the proposed TCPA class was neither ascertainable nor identifiable where the “[d]efendants provide[d] evidence that some of the [text message] recipients may have consented, because callers were explicitly informed that they may be contacted by the company at the number from which they had called and provided an opportunity to opt-out of receiving such contacts”). Accordingly, the Court rejects Optimum’s predominance and commonality arguments as premature. See Wolfkiel, 2014 WL 866979, at *6 (denying motion to strike class allegations where the named plaintiffs’ allegations were sufficient to overcome the problem of individual consent at the pleading stage); cf. Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684–85 (7th Cir.2013) (rejecting the defendant’s argument that individual issues regarding whether each proposed class member received a junk fax precluded class certification because the defendant had “compiled information about which faxes were received and by whom[,] [and] no reasonable juror could conclude that th [e] data are inaccurate.”). The Court makes no determinations regarding whether proposed class members’ claims are, in fact, susceptible to generalized proof; it holds only that Buonomo must have the opportunity to conduct discovery regarding what evidence that exists before the Court can determine whether certification of a “wrong party” class is appropriate in this case.