IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Michael Anthony, individually, and on behalf of all others similarly situated,
Plaintiff, Case No. 21 C 2509 v. Hon. LaShonda A. Hunt The Federal Savings Bank, National Bancorp Holdings, Inc., and FDE Marketing Group LLC,
Defendants.
MEMORANDUM OPINION AND ORDER Michael Anthony (“Plaintiff”) filed this putative class action against The Federal Savings Bank (“FSB”), National Bancorp Holdings, Inc. (“NBH”), and FDE Marketing Group, LLC (“FDE”) (collectively, “Defendants”)1, asserting violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(c). Currently before the Court are Plaintiff’s combined motion for class certification and to bar defense expert Jan Kostyun (Dkt. 128) and Defendants’ cross-motion to bar plaintiff’s expert Aaron Woolfson (Dkt. 134). Upon consideration of the legal arguments presented in the submissions as well as during oral argument, the Court grants the motion for class certification and denies each motion to bar for the reasons discussed below. BACKGROUND In the age of the digital world, many have been on the receiving end of a phone call, text message, email, or fax that they have found annoying. Recognizing the disturbance caused by these
1 On May 16, 2023, counsel for FDE was allowed to withdraw. In light of the FDE representative’s statement that new counsel would not be retained to defend the case, Plaintiff was granted leave to seek entry of default against FDE at any appropriate time. (See Dkt. 139). FDE has never opposed the relief sought by Plaintiff here. As such, the Court uses the term “Defendants” for simplicity sake even though arguments were submitted on behalf of FSB and NBH only. unwanted communications, in 1991, Congress enacted the TCPA which provides a private right of action for “[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection . . . .” 47 U.S.C. § 227(c)(5). And since 2003, individuals have been able to register their residential
and/or cell phone numbers on the National Do Not Call registry (“Registry”) to further avoid telemarketers. In May 2004, Plaintiff added his residential phone number to the Registry. Nevertheless, from about January 2020 to January 2022, he received “numerous unsolicited calls to his phone asking for someone named ‘Needle Dee,’” a name he does not and has never used. (Compl. ¶¶ 32, 33). After receiving three such unsolicited calls in April 2021, Plaintiff “feigned interest” in an effort to identify the caller. (Id. ¶¶ 33-38). He subsequently learned that the caller was an FSB representative. FSB, which is owned by NBH, provides traditional banking services and sells residential mortgages. Defendants hired third-party companies, including FDE, to place these telemarketing calls to consumers. Upon a successful pitch with a potential customer, FDE would
transfer the live call to one of Defendants’ representatives to complete the sale. (Id.). Plaintiff says that despite instructing FSB not to contact him again, he received four more unwanted calls from that same number. Plaintiff contends that he never provided consent to receive such communications and had no prior relationship with Defendants to justify the calls. He therefore brought this action on behalf of himself and other individuals who had registered on the Registry but were contacted by Defendants without having provided prior consent to receive such communications. Following fact and expert discovery, he now moves to certify the following class and subclass: (1) “National DNC Class” defined as “All persons within the United States whose phone numbers () are included in the Ytel call detail records of FDE Marketing Group, LLC (“FDE”) produced in this matter, and (ii) received more than one call from FDE in any twelve-month period while their phone numbers were registered on the National Do Not Call Registry for at least 30 days.”; and
(2) “Transfer Subclass” defined as “All members of the National DNC Class whose call resulted in a transfer to The Federal Savings Bank (“FSB”) or National Bancorp Holdings, Inc. (“NBH”).” (Id.).
(Pl.’s Mot. at 1, Dkt. 128). In conjunction with that motion, Plaintiff also moves to bar Defendants’ rebuttal expert, Jan Kostyun. In turn, Defendants oppose class certification and cross-move to bar plaintiff’s expert Aaron Woolfson.2 LEGAL STANDARDS Class actions are an “exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). To be certified, a class must meet all prerequisites identified in Rule 23(a) and one of the three subsections of Rule 23(b). Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008). Rule 23(a) requires: (1) a class that is “so numerous that joinder of all members is impracticable,” (“numerosity”), (2) “questions of law or fact common to the class,” (“commonality”), (3) “claims or defenses of the representative parties [that] are typical of the claims or defenses of the class,” (“typicality”), and (4) that “the representative parties will fairly and adequately protect the interests of the class” (“fairly and adequately”). Fed. R. Civ. P. 23 (a)(1)-(4). If those prerequisites are met, a class may be certified 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
2 This case was reassigned to Judge Hunt’s calendar on June 2, 2023 (Dkt. 146). Prior to the reassignment, District Judge Edmond Chang ordered consolidated briefing on Plaintiff’s motion for class certification and any motions to bar expert testimony after the parties represented that expert challenges were “directly connected to the class-certification motion.” (Dkt. 125). corresponding declaratory relief is appropriate respecting the class as a whole,” Fed. R. Civ. P. 23(b)(2), or Rule 23(b)(3)’s requirements of predominance and superiority are met. Specifically, Rule 23(b)(3) requires courts to find that: [T]he questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Furthermore, a class may be divided into subclasses when appropriate to protect divergent interests. Fed. R. Civ. P. 23(c)(5); Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 940 (7th Cir. 2016). To be certified, a subclass must meet the same requirements as a regular class. Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 599 (7th Cir. 1993). In addition to satisfying the requirements in Rule 23(a) and (b), “a class must be sufficiently definite that its members are ascertainable.” Toney v. Quality Res., Inc., 323 F.R.D. 567, 577 (N.D. Ill. 2018). Finally, Plaintiff bears the burden of proving by a preponderance of the evidence that class certification is proper. Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 29 F.4th 839, 843 (7th Cir. 2022). The admissibility of expert testimony is governed by Rule 702 and the Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Specifically, “expert testimony is admissible only if (1) the expert testifies to valid, technical, scientific, or other specialized knowledge; and (2) that testimony will assist the trier of fact.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th Cir. 2012). Stated another way, experts must be qualified and their testimony both relevant and reliable. Daubert, 509 U.S. at 589. This inquiry is flexible, and “[t]he focus . . . must be solely on principles and methodology, not on the conclusions
that they generate.” Id. at 594-95. “When an expert’s report or testimony is critical to class certification . . . a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion.” Am Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010). DISCUSSION I. Ascertainability In determining whether class certification is appropriate, ascertainability is a threshold question. Toney, 323 F.R.D. at 577. Like other courts, the Seventh Circuit has “long recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria rather than by, for example, a class member’s state of mind.” Mullins,
795 F.3d at 657. At issue is the “adequacy of the class definition,” not “the potential difficulty of identifying particular members of the class and evaluating the validity of claims they might eventually submit.” Id. Plaintiff relies on testimony from his expert, Aaron Woolfson, in proposing the National DNC Class and the Transfer Subclass. Defendants offer the opinion of their rebuttal expert, Jan Kostyun, in seeking to bar Woolfson’s testimony. And Plaintiff counters that Kostyun’s methodology is unreliable. Because Defendants repeatedly contend that ascertainability hinges on the admissibility of expert testimony, the Court begins by analyzing each of the parties’ motions to exclude. See Am. Honda Motor Co., 600 F.3d at 816 (requiring courts to “resolve any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification”). Even where the significance of the testimony is doubtful, courts are required to make an explicit Daubert ruling. Messner, 669 F.3d at 812.
A. Daubert Motions 1. Aaron Woolfson’s Expert Report Woolfson reached three conclusions after reviewing call detail records (“CDRs”) obtained from Ytel, FDE’s carrier: (1) that “there is a reliable method to identify which calls in the call records were made to telephone numbers (a) to which two or more times were called in a twelve month period by [FDE], and (b) that were registered with the [Registry] for more than thirty days before each of the calls”; (2) that “using the CDRs and Defendants’ call transfer logs, there is a reliable method to identify the calls in the CDRs that were to phone numbers that also appear in the call transfer log (“Live Transfers”); and (3) that he is “able to identify contact information, including names and mailing addresses, related to the individuals to whom the calls were placed,
based upon the records that are maintained by phone carriers in their ordinary course of business.” (Woolfson Decl. at ¶3, Dkt. 128-2). Woolfson has “over 25 years of experience in developing and analyzing databases and telephone systems and establishing the interfaces between telephone systems and the networks that convey calls.” (Id. at ¶7). And it is through this “hands-on work experience” that he has “become very familiar with the [relevant] technology . . through which calls are processed, received and transmitted” as well as “how dialing systems work, and how telephone systems handle inbound and outbound calls.” (Id. at ¶12). He has been qualified as an expert in other TCPA cases requiring him to analyze call records and compare them against records of leads. (Id. at ¶¶15-16). Plaintiffs thus rely upon Woolfson’s opinion in proposing the National DNC Class and the Transfer Subclass. Defendants do not take issue with Woolfson’s qualifications, which appear to be more than adequate for him to opine about the subject matter here. Instead, relying upon the rebuttal report
of Kostyun, Defendants contend that Woolfson’s methodology used to identify potential class members is faulty and therefore Plaintiff cannot establish that the proposed classes are ascertainable. In particular, Defendants maintain that the Ytel CDRs are unreliable because, among other things, they fail to include disposition information specifying the outcome of the call (connected, disconnected, busy signal, picked up by an answering machine, etc.); round up every call of more than zero seconds to a six-second duration, making it unclear if such a call was successfully connected; and include six-second calls placed to numbers there were not in service or were otherwise unavailable for assignment. (Dfts.’ Resp. at 13, Dkt. 134). Second, they complain that Woolfson’s process for identifying individuals on the Registry as of the date of a call is unsound because he used his personal records covering a portion of the relevant class period
rather than a reliable vendor who maintained daily registration lists. Id. at 14. Next, they take issue with Woolfson reviewing the wrong database records to identify eligible calls in the Transfer Subclass. Id. at 15. Last, Defendants highlight the practical difficulties of Woolfson’s proposal to subpoena hundreds of potential carriers to identify registered phone users from years ago. Id. Based on his review of the data, Woolfson opined that Defendants violated the TCPA by calling 2,294,457 phone numbers in the National DNC Class, and transferring calls of 27,088 class members in the Transfer Subclass. Defendants’ critique of Woolfson’s opinion essentially falls into two buckets—(1) disagreements about how he interpreted certain datapoints to reach his specific conclusions; and (2) concerns about the difficulties of his proposed process for identifying class members. However, neither contention constitutes a valid basis for exclusion of his opinions at the class certification stage or denial of class certification, for that matter. First, with respect to the underlying data relied upon by Woolfson, the parties agree that the Ytel CDRs do not include call disposition information that affirmatively indicates if every
telephone call placed by FDE actually connected to an active number on the Registry. Because of that, Woolfson determined that an appropriate measure of this critical detail was call duration. Defendants take issue with the fact that the CDRs contain multiple six-second calls, and many of those, according to Kostyun, but only some of those according to Woolfson, were misread as connected and placed to assigned residential numbers. Similarly, Defendants’ challenge the scope of Registry lists Woolfson consulted to identify registered numbers, and argue that he misread a chart provided by Defendants in assessing which calls were transferred from FDE. At bottom, Defendants attack the reliability of Woolfson’s conclusions and whether they are supported by the data, not the validity of the methodology he employed in forming his opinions. “[T]he court’s gatekeeping function focuses on an examination of the expert’s methodology
[while] [t]he soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment.” Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000). “Assuming a rational connection between the data and the opinion. . . an expert’s reliance on faulty information is a matter to be explored on cross-examination; it does not go to admissibility.” Manpower, Inc. v. Ins. Co. of the State of Penn., 732 F.3d 796, 808 (7th Cir. 2013). That is indeed the situation here. Both sides argue at length in their extensive briefs that the opposing expert has erroneously interpreted the relevant data, and as a result, the opinions reached are wrong. But such “arguments about how the selection of data inputs affect the merits of the conclusions produced by an accepted methodology” are substantive considerations rather than proper Daubert challenges. Manpower, Inc., 732 F.3d at 808. Woolfson sufficiently explained the process he used to query the data and then analyze the output. That Plaintiff disagrees with Woolfson’s ultimate decisions does not render his method or opinion excludable as unreliable.
Second, Defendants’ attempt to connect the identification of exactly who falls within the proposed class to the ascertainability analysis is a nonstarter. As they conceded at oral argument, the Seventh Circuit soundly rejected any notion of this “heightened” ascertainability standard requiring proof of a reliable and administratively feasible way to identify class members at the certification stage. Mullins v. Direct Digit., LLC, 795 F.3d 654, 658 (7th Cir. 2015). The cases cited by Defendants were all decided after Mullins and are therefore irrelevant. Because this is an issue that does not even impact class certification, the Court is hard-pressed to see how skepticism about Plaintiff’s ability to actually track down proposed class members would be a consideration for Daubert purposes. Accordingly, Defendants’ motion to exclude Woolfson as an expert is denied.3
2. Jan Kostyun’s Rebuttal Expert Report After reviewing Woolfson’s expert report, Kostyun reached the four conclusions discussed supra. (Kostyun Rebuttal Rep. at ¶15, Dkt. 134-1). Kostyun is an “independent technology consultant with over 35 years of experience covering the areas of telecommunications, enterprise architecture, and information technologies.” (Id. at ¶3). He “developed expertise in areas such as . . . landline and wireless order entry, including the collection of subscriber contact information
3 At oral argument and in their briefs, Defendants also argued in passing that Woolfson’s opinion should be excluded on commonality and predominance grounds. As with ascertainability, the Court disagrees that either factor is relevant to the Daubert analysis. Defendants do raise substantive arguments that are addressed infra in connection with the class certification analysis and are mostly rejected as premature or more appropriate for a merits determination. [and] initial implementation of the National Do Not Call registry” and has “extensive experience in database methodologies, data analysis, and data mining” in addition to “call center operations and various dialing systems, including those used for inbound and outbound calling campaigns.” (Id. at ¶¶4-6). He has “personally performed database queries and data analysis against hundreds
of data stores [such as] National Do Not Call lists, Wireless Block identifiers, Number Portability transaction lists and telephone call records produced by both wireless carriers and businesses involved in dialing campaigns.” (Id. at ¶5). Defendants thus rely upon Kostyun’s opinions in opposing class certification. Similar to Defendants, Plaintiff does not take issue with Kostyun’s qualifications as they too appear to be more than adequate for him to offer a rebuttal opinion as to this TCPA claim. Plaintiff contends, however, that Kostyun’s methodology is not reproducible, as evidenced by his deposition testimony that he ran “hundreds and hundreds of queries against the data” which he cannot itemize or reproduce. (Pls. Mot. at 7, Dkt. 128). Essentially, Plaintiffs complain that Kostyun gave answers but did not and cannot show his work.
In his rebuttal report, Kostyun described his methodology as follows: I developed hypotheses regarding the methods used by Plaintiff’s expert Woolfson to identify Plaintiff’s classes. Those hypotheses are fundamental foundations of each of the opinions that I will detail in this report. I have tested and confirmed my hypotheses using a combination of related documentation, research, data analysis and experience – similar to the techniques that I have used during my career as a telecommunications system architect. I have analyzed the results of my analysis and testing, and used the results of the analysis to form my opinions and document them in this report.
(Kostyun Rebuttal Rep. at ¶14). True, this paragraph does not set forth step-by-step how Kostyun determined that Woolfson in fact made some mistakes, as evidenced by Woolfson’s corrected errata sheets. That said, Defendants explained that Kostyun’s analysis “was undertaken in a forensic manner” that involved both “simplistic” and “more complex” queries of the data, and the “entire database and structure” were produced to Plaintiff. (Dfts.’ Resp. at 10). Plaintiff does not contend that Kostyun used an unacceptable methodology for the relevant industry. In fact, given that Woolfson’s reply (Dkt. 128-5) offers substantive grounds for some of the anomalies noted by
Kostyun, this signals that Plaintiff, like Defendants, do nothing more than disagree with the opposing expert’s conclusions. As already explained, the Daubert inquiry focuses on assessing if Kostyun’s methodology lacks analytically sound bases, not if his rebuttal opinions are correct. Those remain questions for cross-examination, not motions to bar experts. All the ink spilled in the briefs about the flawed assumptions and misunderstandings of each expert clearly establish that these disputes go to the weight of their opinions, not their admissibility. See Toney, 323 F.R.D. at 579-580. As such, for the reasons outlined supra for rejecting the Defendants’ Daubert challenge to Woolfson, Plaintiff’s opposition to Kostyun also fails. Accordingly, Plaintiff’s motion to exclude Kostyun as an expert is denied. B. Class is Ascertainable
In 2015, the Seventh Circuit articulated the governing standard in this circuit for assessing if a class is ascertainable: [The Seventh Circuit] and other courts have long recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria rather than by, for example, a class member’s state of mind. In addressing this requirement, courts have sometimes used the term “ascertainability.” They have applied this requirement to all class actions, regardless of whether certification was sought under Rule 23(b)(1), (2), or (3). Class definitions have failed this requirement when they were too vague or subjective, or when class membership was defined in terms of success on the merits (so-called “fail- safe” classes). This version of ascertainability is well-settled in our circuit . . . . Mullins, 795 F.3d at 657. And while some circuits have imposed an additional hurdle that there be a “reliable and administratively feasible way to identify all who fall within the class definition,” as discussed, the Seventh Circuit has stated in no uncertain terms that it declines to adopt such a requirement because “[n]othing in Rule 23 mentions or implies this heightened requirement.” Id.
at 657-58. In determining ascertainability, the focus is simply on whether the definition of the class is adequate, rather than the difficulty of identifying class members. Id. at 659. Plaintiff’s proposed National DNC Class and Transfer Subclass are ascertainable under that standard. First, the class and subclass definitions are not vague. A vague definition frustrates a court’s ability to determine who, upon class certification, will receive notice, share in recovery, and be bound by judgment. Id. at 660. Mullins instructs that a definition generally avoids vagueness concerns if it identifies “a particular group, harmed during a particular time frame, in a particular location, in a particular way.” Id. Plaintiff’s proposed class and subclass are clearly defined, and Defendants do not argue that the proposed definitions are vague. Second, neither the class nor subclass definition involve subjective criteria or rely upon a
proposed class member’s state of mind. To the contrary, both use purely objective criteria—namely call records and transfer records—to determine class membership. In other words, the proposed classes are defined by FDE’s conduct of placing the calls and transferring certain call recipients, rather than by any thoughts or actions by the proposed class members. Defendants do not contend that the Plaintiff’s proposed class or subclass definitions are subjective. They also do not argue that Plaintiff has proposed a fail-safe class or subclass. To the extent there are concerns about identifying and managing class members and/or the claims process, any problems can be addressed through scheduling orders or other case management tools that district courts routinely use in overseeing these actions. Mullins, 795 F.3d at 664. Accordingly, the Court finds the proposed National DNC Class and Transfer Subclass are ascertainable and thus proceeds to analyze the enumerated requirements for class certification under Rule 23. II. Rule 23(a)
A. Numerosity Class certification requires a class that “is so numerous that joinder of all members is impracticable[.]” Fed. R. Civ. P. 23(a)(1). The focus of the numerosity requirement is the practicability of joinder, which requires evaluating “the nature of the action, the size of the individual claims, and the location of the members of the class” with forty class members typically satisfying this requirement. Anderson v. Weinert Enters., Inc., 986 F.3d 773, 777 (7th Cir. 2021) (citation omitted). Plaintiff argues, and Defendant does not contest, that numerosity is met. The proposed class and subclass will include over 2.2 million members and over 27,000 members, respectively, who are dispersed across the country and whose individual claims would be small. (Pl.’s Mot. at 12).
Accordingly, numerosity is satisfied. B. Commonality Questions of law or fact must be common to a class for that class to be certified. Fed. R. Civ. P. 23(a)(2). For this element to be met, every question need not be common to the class. Wal- Mart v. Dukes, 564 U.S. 338, 359 (2011). Indeed, “[i]t is routine in class actions to have a final phase in which individualized proof must be submitted.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014). A mere superficial question, such as whether the proposed class members all suffered a violation of the same statute, will not suffice. Wal-Mart, 564 U.S. at 350. In analyzing whether there are common questions of law or fact among the class, it is the conduct of the defendant that matters. “Where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question.” Suchanek, 764 F.3d at 756. “[C]laims must depend upon a common contention . . . [which] must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal- Mart, 564 U.S. at 350. It is the generation of common answers to the common questions that matters. Id. Usually, commonality can be satisfied if there is “[a] common nucleus of operative fact.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Plaintiff argues that there are common questions of law and fact, including the injury, the amount of statutory damages, and evidence of liability. Beyond this, Plaintiff contends that questions of standing and consent will include evidence that is common among class members. As stated, the fact that class members suffer the same injury does not render a class susceptible to class certification. On the other hand, even if every proposed class member would not receive the same statutory damages, that itself does not justify denial of class certification. Mullins, 795 F.3d
at 671. Defendants do not contest that every class member would receive the same statutory damages. Standing, consent, and vicarious liability are all common questions of law or fact. There is a common nucleus of operative fact in this case—Defendants allegedly contacted Plaintiff and proposed class members, without their consent, after they had been registered for more than 30 days on the National Do Not Call registry. Because the Defendant engaged in the same conduct against each proposed class member, the commonality requirement is met. See, e.g., Paldo Sign and Display Co. v. Topsail Sportswear, Inc., Case No. 08 C 5959, 2010 WL 4931001, at *2 (N.D. Ill. Nov. 29, 2010) (finding common questions of law and fact when “[t]he evidence presented to the Court reflects that the [defendant] acted with regard to the class in a common and consistent way and engaged in a standardized course of conduct out of which the class members’ alleged injuries arise.”). Accordingly, commonality is satisfied.
C. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “A plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [plaintiff’s] claims are based on the same legal theory.” De La Fuente v. Stokely- Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and quotations omitted). Some factual variation among claims will not defeat typicality. Id. “Typicality . . . should be determined with reference to the [defendant’s] actions, not with respect to particularized defenses it might have against certain class members.” Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996). Plaintiff argues his claims are typical of those of the class because all claims in this case
arise from the same course of conduct by the Defendants and are premised on the same legal theories of TCPA violations and vicarious liability. Pl.’s Mem. at 13. Defendants do not address typicality in their briefing. The Court agrees that Plaintiff’s claims are typical of the proposed class members. Just like Plaintiff, the proposed call members had phone numbers that were registered on the Registry and had been for at least 30 days prior to receiving a non-consensual phone call from FDE. The legal theories at issue in the case—that the calls violated the TCPA and that FSB is vicariously liable— are the same for each class member. Accordingly, typicality is satisfied. D. Fairly and Adequately The final requirement of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent” and to
ensure that the representative party “possess[es] the same interest and suffer[s] the same injury as the class members.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26 (1997). According to Plaintiff, this requirement is met because he and the proposed class members have identical interests in prosecuting TCPA claims, Defendants do not have any unique defenses to Plaintiff’s claims, and Plaintiff has retained competent counsel. (Pl.’s Mem. at 14). Defendants do not present any arguments to the contrary. Accordingly, adequacy is satisfied. III. Rule 23(b)(3) Rule 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Further, the rule identifies pertinent considerations in determining whether the predominance and superiority requirements are met. Id. A. Predominance “An individual question is one where members of a proposed class will need to present evidence that varies from member to member; a common question is one where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof.” Gorss Motels, 29 F.4th at 843-44. Notably, this Court need not decide, from a merits standpoint, whether any common question will be answered in the class’s favor. Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 376 (7th Cir. 2015). Additionally, the proposed class need not be devoid of individual questions; rather, the common questions must simply predominate. Messner, 669 F.3d at 815. While the Plaintiff says that no individualized issues are present, Pl.’s Mem. at 15, Defendants contend that consent, vicarious liability, standing require
individualized inquiries and thus prevent class certification. The Court finds Defendants’ arguments unpersuasive. 1. Standing Defendants maintain that standing requires individualized inquiries as there is “strong evidence suggesting that individual class members may lack standing” and “the very existence of a transfer subclass negates an inference of injury.” (Dfts.’ Resp. at 28). Defendants are correct that standing requires a concrete harm. TransUnion LLC v. Ramirez, 594 U.S. 413, 417 (2012). But the Plaintiff and the proposed class members have suffered a concrete harm. Determining whether TCPA violations constitute concrete injury for standing purposes requires looking to history and Congressional judgment. Gahelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020). In
terms of history, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). Of course, intrusion upon seclusion has long been recognized in the common law, and the Gahelhak court notes that the “irritating intrusions” that such a common law tort protects against are analogous to “harm posed by unwanted text messages.” Id. In recognition of this, “Congress identified a modern relative of a harm with long common law roots.” Id. Standing here is not an individualized question, though, as the Plaintiff and proposed class members suffered a concrete injury when they received unwanted telemarketing phone calls. In Aranda v. Caribbean Cruise Line, Inc., the district court held that “[b]oth history and the judgment of Congress suggest that violation of [the right to be free from unsolicited telemarketing calls to which the recipient did not consent] is sufficient to constitute a concrete, de facto injury.” 202 F.Supp.3d 850, 857-58 (N.D. Ill. 2016). The harm lies in the unwanted contact itself; additional
tangible harms such as “cell phone battery life, actual annoyance, and financial loss” are not required. Id. at 858. See also Toney, 323 F.R.D. at 582-83 (“Loss of time and privacy responding to unsolicited communications are concrete injuries that confer Article III standing . . . .”). Defendants’ argument that “the very existence of a transfer subclass negates an inference of injury” fares no better. The Aranda court addressed a similar factual scenario. There, proposed class members received telemarketing calls offering a free cruise in exchange for the recipient completing a political survey. Aranda, 202 F.Supp.3d at 851-52. Some class members engaged with the call, completed the survey, and earned the free cruise. Id. at 859. Even those class members, the Aranda court held, had standing: [T]he intangible, concrete injury plaintiffs allege is that defendants violated a right Congress sought to protect through section 227: the right to be free from prerecorded non-emergency telemarketing calls they did not consent to receive. This concrete injury is alleged to have been suffered by every plaintiff—even plaintiffs who completed the survey, spoke with a [company] representative, and accepted defendants’ vacation offer had a right to be free from unsolicited telemarketing calls, just as a homeowner has a right to be free from trespass even if she accepts a gift from the trespasser after he commits the offense. The key common question is whether defendants made unlawful calls to plaintiffs using a prerecorded voice without consent to make them; plaintiffs win if the answer to this question is yes, and defendants win if the answer is no.
Id. at 858-59 (emphasis added).
The same is true here for the proposed classes. Contrary to Defendants’ argument that Transfer Subclass members demonstrated that they did not find the calls unwanted by engaging with the call, the concrete injury lies in the fact that the class as a whole is comprised of individuals with phone numbers registered on the Registry but who were contacted anyway. This alone makes the contact unwanted, warranting a finding that every proposed class member has Article III standing. 2. Consent
Defendants also argue that whether proposed class members consented to FDE’s calls involves individual questions rendering class certification improper. According to Plaintiff, Defendants would have needed prior, expressed, written consent to call the proposed class members without violating the FCPA, and Defendants obtained no such consent and have not provided evidence of consent by any class members.4 In response, Defendants contend that they only purchased lead data for individuals who had already consented to the calls. (Dfts.’ Resp. at 5- 6). “Whether issues of individualized consent defeat the predominance requirement in a TCPA case is made on a case-by-case basis after evaluating the specific evidence available to prove consent.” Legg v. PTZ Insurance Agency, Ltd., 321 F.R.D. 572, 577 (N.D. Ill. 2017).” Because
consent is an affirmative defense, Defendants bear the burden of proof. Blow v. Bijora, Inc., 855 F.3d 793, 806-07 (7th Cir. 2017). In Gorss Motels, the Seventh Circuit addressed whether a situation like the one in this case would require individualized inquiries: There are certainly instances in which the issue of prior express permission might be amenable to class-wide proof. For example . . . in some cases brought under the [TCPA], where the fax sender purchased a contact list from a third-party vendor and made no attempt to seek permission from any of the recipients before sending the fax advertisement, there is a generalized, class-wide manner of proving lack of consent.
4 Plaintiff also argued that Defendants’ “concede that they lacked consent when they voluntarily dismissed their counterclaim.” (Pl.’s Mot. at 16). The Court disregards this point. Parties settle and dismiss claims for a variety of reasons that do not necessarily involve concessions of liability. 29 F.4th at 844. Similarly, in Paldo Sign and Display Co. v. Topsail Sportswear, Inc., the court found that obtaining proposed class members’ fax numbers by purchasing them from an outside source with no follow-up attempts to verify consent “likely rules out the possibility of individualized consent defenses.” Case No. 08 C 5959, 2010 WL 4931001, at *2 (N.D. Ill. Nov.
29, 2010). Unlike in Gorss Motels, where the defendant obtained proposed class members’ phone numbers from a variety of sources (including non-uniform franchise agreements, badges that were swiped at trade conventions, prior existing relationships, etc.), Defendants contend that FDE obtained all the proposed class members’ numbers from the same commercial source, making the question of consent suitable for class-wide resolution, just as Gorss Motors contemplated. Further, Defendants have not pointed to any evidence to suggest that any attempts to obtain consent were made prior to making the calls. Defendants make much of the fact that the Transfer Subclass cannot challenge their consent because they agreed to the transfer. However, just as the Aranda court rejected the reasoning that
those who engaged with the illegal call lacked standing, this Court finds that those who were transferred are not deemed to have waived consent. As Plaintiff points out, the TCPA serves to stop unwanted calls from being made in the first place. At the time the call has been placed, any potential harm has already occurred. 3. Vicarious Liability Finally, the parties disagree about whether evidence used to establish vicarious liability presents individualized questions precluding class certification. TCPA actions may involve questions of federal common law agency.5 See Bilek v. Federal Insurance Co., 8 F.4th 581, 587
5 See Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6584 (2013) (“seller may be held vicariously liable under federal common law principles of agency for TCPA violations committed by third-party telemarketers;” “seller may (7th Cir. 2021). Plaintiff argues that the same evidence will be used to establish vicarious liability through actual authority, apparent authority, or ratification. (Pl.’s Mot. at 17-20). Defendants contend that because FDE had multiple clients, determining which of the calls were placed on FSB’s behalf requires individualized inquiry. In the event that FSB was not FDE’s only client, Plaintiff argues that this would render others jointly and severally liable,6 thus maintaining that it
does not preclude class certification. (Pl.’s Mot. at 20). a. Actual Authority The parties spend a great deal of time arguing about whether the facts demonstrate actual authority in this case, specifically regarding whether FDE was an independent contractor hired by FSB. The merits of the question are not before the Court, though. The only issue to be decided now is whether the evidence used to establish actual authority will be common to all class members. Instead of addressing the salient question, Defendants’ response offers argument on the merits only. Failing to see how evidence of actual authority would vary from class member to class member, the Court finds that the question presents common evidence and thus supports class
certification. b. Apparent Authority Apparent authority is a closer call. “Apparent authority holds a principal accountable for the results of third-party beliefs about an actor’s authority to act as an agent when the belief is
be liable for violations by its representatives under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification;” “Federal statutory tort actions, such as those authorized under the TCPA, typically are construed to incorporate federal common law agency principles of vicarious liability where, as here, the language of the statute permits such a construction and doing so would advance statutory purposes. Consistent with the precent, and the presumption that ‘legislatures act with case law in mind,’ we find that section 227(c)(5) contemplates, at a minimum, the application of such principles of vicarious seller liability for do-not-call violations.”)
6 The Court notes that Plaintiff discusses joint and several liability in his briefing. (See Pl.’s Mot. at 20). At this juncture, the Court need not address the merits of any such argument, but only whether the question requires common or individualized evidence. reasonable and is traceable to a manifestation of the principal.” Toney, 323 F.R.D. 567 at 744 (quoting Restatement (Third) of Agency § 2.03 cmt. c (2006)). Toney held that “to plead apparent authority, [plaintiff] must allege that she reasonably believed that [telemarketer] called her as [company’s] agent and that her belief is traceable to a manifestation of [telemarketer’s] authority
from [company].” Id. According to Defendants, the fact that apparent authority relies upon subjective belief requires individualized analysis precluding class certification. Defendants’ argument is not entirely without merit. See Warciak v. Subway Restaurants, Inc., 949 F.3d 354, 357 (7th Cir. 2020) (“Apparent authority exists when a third-party reasonably relies on the principal’s manifestation of authority to an agent.”). Indeed, Plaintiff notes that FDE only identified FSB after identifying a potential customer, that FDE does not identify itself unless someone asks, and that “in certain instances, FSB loan officers represented to consumers that FSB called them.” (Pl.’s Mot. at 21 (emphasis added)). However, the FCC has provided “illustrative examples of evidence that may demonstrate that the telemarketer is the seller’s authorized representative with apparent authority to make the seller vicariously liable for the telemarketer’s
section 227(b) violations,” among which are: • evidence that the seller allows the outside sales entity access to information and systems that normally would be within the seller’s exclusive control, including access to detailed information regarding the nature and pricing of the seller’s products and services or to the seller’s customer information; • the ability by the outside sales entity to enter consumer information into the seller’s sales or customer systems, as well as the authority to use the seller’s trade name, trademark and service mark may also be relevant; • whether the seller approved, wrote or reviewed the outside entity’s telemarketing scripts; and • whether the seller knew (or reasonably should have known) that the telemarketer was violating the TCPA on the seller’s behalf and the seller failed to take effective
steps within its power to force the telemarketer to cease that conduct. In re Petition Filed by Dish Network, LLC, 28 F.C.C. Red. 6574, 6592-93 (F.C.C. 2013). While the FCC’s opinion is not binding, the Court finds persuasive its examples and that the answers to these and similar questions will require common rather than individualized evidence. Defendants also contend that determining whether a call matched the criteria for FSB, as opposed to a different client, requires individualized inquiry. According to Defendants, “[v]endors do not know when they place the call if it is for FSB or another of the vendor’s clients, because the filters are premised on the answers provided on the phone call. [] [W]hen a vendor places a call if is not for FSB—it is for the vendor which may transfer the lead to FSB, or to any number
of other clients they may have at the time.” (Dfts.’ Resp. at 3 (citing Ex. C at 19:1-6)). Apparently, there were times when FSB was FDE’s only client, and other times when FSB had multiple clients. Defendants argue that at some points in time, FSB was FDE’s sole client; at other times, FDE had many clients. (Dfts.’ Resp. at 24). Therefore, Defendants insist, “agency cannot be determined by common proof and would require the type of fact-specific, individualized inquiry dependent on the number of FDE clients at any given time when a particular call was placed.” Id. The Court fails to see how whether FDE had one or multiple clients at a given time creates individual questions. It is undisputed that FDE placed the calls. There are three possible outcomes regarding FSB’s liability and agency: agency never existed, agency always existed, or agency existed only when FSB was FDE’s sole client. If the latter is true, the result may be that FSB is liable to a smaller subset of class members who were illegally contacted by FDE during a particular timeframe. At most, this lends itself to the creation of different subclasses, not a decision to deny class certification altogether. After all, Rule 23 permits more than one subclass, Fed. R. Civ. P. 23(c)(5), and the Court has discretion to modify a class. See Howard v. Cook Cnty. Sheriff’s Off.,
989 F.3d 587, 599 (7th Cir. 2021) (finding that in light of new evidence, the court properly exercised its discretion in modifying the class and holding that “[i]n many cases, a modified class may satisfy Rule 23 for the reasons the original class did, and a court may simply say so.”). Defendants will be afforded “a fair opportunity to present its defenses when putative class members actually come forward.” Mullins, 795 F.3d at 670. c. Ratification The parties’ arguments regarding ratification also focus on the merits of the question, which is not before this Court at this time. The Court sees no reason why the evidence that is discussed in the briefing would not apply equally to all class members. As a result, the question of ratification does not require individualized considerations that may preclude class certification.
B. Superiority Finally, and undoubtedly, a class action is the superior method for fairly and efficiently adjudicating this case. “Rule 23(b)(3)’s superiority requirement, unlike the freestanding ascertainability requirement, is comparative: the court must assess efficiency with an eye toward other available methods.” Mullins, 795 F.3d at 664 (quotations omitted). Of the pertinent matters to be considered, as identified in Rule 23, only two are applicable in this case: the class members’ interests in individually controlling the prosecution of separate actions, and the likely difficulties in managing this case were it to proceed as a class action. Fed. R. Civ. P. 23(b)(3)(A), (D). Both support class certification. Cases brought pursuant to the TCPA are often worth far too little to justify bringing an individual suit. The Seventh Circuit has gone as far as to state that in claims of relatively small
value, “only a lunatic or a fanatic would litigate the claim individually.” Mullins, 795 F.3d at 665 (quoting Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004)). As a result, courts have long recognized the value of the class action mechanism for claims of low value, as failure to do so could have the unintended consequences of insulating defendants from liability so long as the alleged damage to each individual is outweighed by the cost of litigation. The Carnegie court addressed this exact concern, stating that a realistic alternative to a class action in suits of low value is “not 17 million individual suits, but zero individual suits.” 376 F.3d at 661. As most, an individual Plaintiff may receive $1,500 per TCPA violation if they can demonstrate a willful or knowing violation. 47 U.S.C. § 227(b)(3). But that maximum figure of $1,500 must be considered in light of a plaintiff knowing his rights, his willingness and ability to
find (and pay) an attorney and subject himself to the sometimes slow and cumbersome process of litigation, all over what may have initially been a 10-second unwelcomed phone call. See Mace v. Van Ru Credit Corp., 109 F.3d 338, 345 (7th Cir. 1997) (discussing these factors in reviewing denial of class certification in a case alleging violation of the FDCPA, where maximum recovery is $1,000). The case at hand is precisely the type of scenario where the class action mechanism is valuable, rendering it a superior alternative to individual suits. Similarly, the difficulties in managing the case as a class action do not preclude class certification. It is a “well-settled presumption that courts should not refuse to certify a class merely on the basis of manageability concerns,” as “a district judge has discretion to (and [the Seventh Circuit] think[s] normally should) wait and see how serious the problem may turn out to be after settlement or judgment . . . [a]nd if a problem is truly insoluble, the court may decertify the class at a later stage of the litigation.” Mullins, 795 F.3d at 654, 663-64. In responding to Plaintiff’s argument that a class action is superior, Defendants again argue that the inability to identify class
members renders individualized suits superior. The fact that it may be difficult to identify class members does not persuade this Court that a class action is not a superior method of adjudication in this case. See Mullins, 795 F.3d at 664 (“[B]efore refusing to certify a class that meets the requirements of Rule 23(a), the district court should consider the alternatives as Rule 23(b)(3) instructs rather than denying certification because it may be challenging to identify particular class members.”). Having considered the alternatives, this Court is satisfied that there are options for alleviating Defendants’ concerns regarding class member identification. But in the event that those prove unworkable, this may be revisited at a later stage in the litigation. Id. at 664 (“[I]f a problem is truly insoluble, the court may decertify the class at a later stage of the litigation.”). CONCLUSION For all the foregoing reasons, Plaintiff’s combined motion for class certification and motion to bar defense expert Jan Kostyun is granted as to class certification’ and denied as to excluding Kostyun. Both Plaintiff’s proposed “National DNC Class” and “Transfer Subclass” are certified. Defendants’ cross-motion to bar Plaintiff’s expert Aaron Woolfson is denied.
DATED: September 23, 2025 ENTERED:
LASHONDA A. HUNT United States District Judge
7 Plaintiff also argues that his proposed class and subclass satisfy the requirements of Rule 23(b)(2), because “[g]iven the potential liability for past violations Defendants face in this litigation, there is a substantial possibility that Defendants may be unable to satisfy money judgments in subsequent class actions.” (Pl.’s Mot. at 15 (emphasis in original)). However, Plaintiff offers no evidentiary support for this contention, and Defendants fail to address the point in any briefing. Because Plaintiff offers only a conclusory allegation for this Court to consider regarding whether injunctive relief is “necessary” to fully protect any proposed class, class certification based on Rule 23(b)(2) is denied.