Ocwen also argues that part of plaintiffs’ proposed class definition creates an impermissible ‘fail-safe‘ class and therefore that the Court should deny plaintiffs’ request for certification. Def.’s Resp. at 25. A fail-safe class is ‘one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim.‘ Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 825 (7th Cir. 2012). Courts are concerned with class definitions that are written so that potential class members either fit the definition and therefore win their claim or, by virtue of losing, are defined out of the class and are not bound by the judgment. See id. Ocwen argues that plaintiffs have created such a class by defining the class in part as those consumers who have provided a verbal or written request that calls to their cellphones stop—i.e., those consumers who withdrew consent for autodialed phone calls. But as the Seventh Circuit has pointed out, defining a class to avoid the fail-safe pitfall is more of an art than a science, and problems that arise should most often be dealt with ‘by refining the class definition rather than by flatly denying class certification on that basis. ‘ Id. Given that the Court is considering certification for the limited purpose of granting a preliminary injunction—and the potential difficulty of certifying any TCPA class if this definition is deemed a fail-safe class—the Court finds that plaintiffs’ class definition does not so clearly present a fail-safe class as to justify denying certification or rewriting the limited class definition. Ocwen is free to renew this challenge when the Court considers class certification for the purposes of liability.
Ocwen argues that the class definition is overly broad and encompasses consumers who have not received the same treatment as plaintiffs. Ocwen points to the affidavit of Sherri Goodman, its senior vice president of Ocwen’s contact center operations. Goodman says that when Ocwen acquires numbers via skip tracing or ANI capture, it first calls these numbers manually instead of with Aspect software. Def.’s Resp., Ex. 3 (Goodman Affid.) ¶ 11. Ocwen does not use Aspect software to contact these individuals until it has made contact with them and they have consented to receiving autodialed phone calls at their phone number. Ocwen therefore argues that not every call made to phone numbers found through this method is made both with an autodialer and without the consumer’s consent, as required for liability under the TCPA. Def.’s Resp. at 24. The Federal Communications Commission (FCC), however, recently issued an order in which it indicated that any system that has the capability of autodialing phone numbers, even when used in manual mode, qualifies as an autodialer under the TCPA. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.R. 7961, 7971–78 (2015). And Goodman acknowledges that Ocwen’s Aspect software is an ‘autodialer [which] allows Ocwen to contact many more borrowers‘ than it would be able to with manual calls. Goodman Affid. ¶ 14. Therefore any phone call made using this software—even those dialed manually—could lead to liability under the TCPA. Thus the class definition is not overly broad. Ocwen argues that this Court should ignore the FCC’s guidance on this issue from its 2015 order, both because it exceeds Congress’s intent in passing the TCPA and because there is a case pending in the D.C. Circuit regarding whether the FCC exceeded its authority in its 2015 order. Def.’s Sur-Reply in Further Opp’n to Pls.’ Mot. for a Prelim. Inj. and Ltd. Class Certif. (Def.’s Sur-Reply) at 10–13. Regardless of whether this Court agrees with Ocwen’s interpretation of congressional intent, final orders issued by the FCC are binding on this court under the Hobbs Act, 28 U.S.C. § 2341(1). CE Design, Ltd. v. Prism Bus. Media, Inc., 605 F.3d 443, 450 (7th Cir. 2010). Thus the Court must adhere to the FCC’s 2015 ruling so long as it is valid law. The Court also denies Ocwen’s request to stay this motion until a ruling in the D.C. Circuit case is handed down, for the same reasons as it previously denied this request. See dkt. no. 182. The Court therefore applies the FCC’s definition of an autodialer and finds that Ocwen has acted on grounds that apply to the whole class so as to make certification under Rule 23(b)(2) proper. The Court will, however, defer entry of an order certifying a class until certain points addressed in the ‘Injunctive Relief‘ section of this opinion are resolved.