TCPA Plaintiffs Secure Victories in Recent Rulings on Class Certification and Prior Express Consent

This post was written by Albert E. Hartmann and Henry Pietrkowski.

In separate cases, one Illinois federal judge issued several rulings favorable to Telephone Consumer Protection Act (TCPA) plaintiffs on key issues.  One ruling certified classes of almost 1 million consumers who received automated phone calls, even though the defendants’ records alone were not sufficient to identify the class members.  In a series of rulings in another case also involving automated calls, the judge refused to dismiss the case, even though the plaintiff admitted that he gave his cellular phone number to the defendant.

In the first case, Birchmeier v. Caribbean Cruise Line, Inc., et al., # 1:12-cv-04069 (U.S. District Court for the Northern District of Illinois), United States District Judge Matthew F. Kennelly certified two classes – with a combined total membership of almost 1 million consumers – who had received automated calls in alleged violation of the TCPA.  Plaintiffs initially indicated that they had received from defendants a list of almost 175,000 phone numbers to which automated calls had “unquestionably” been made.  At oral argument on class certification, defendants’ counsel conceded that the class members associated with those numbers were ascertainable. 

Ongoing discovery expanded that number to approximately 930,000.  Plaintiffs defined the putative classes as people whose numbers were on the list of 930,000 numbers from defendants, or whose own records could prove that they received a call at issue.  Judge Kennelly rejected defendants’ arguments opposing certification of classes based on this larger number.  The judge rejected the argument that the class was not ascertainable because defendants’ records could not establish the identity of the subscribers to the called numbers at the times of the calls.  The defendants’ earlier admission that the identities of the smaller number of class members were ascertainable, combined with plaintiffs’ contentions that that could (albeit with difficulty) identify the class members, rendered the putative classes sufficiently ascertainable under Rule 23.  Judge Kennelly also ruled that class members could be identified using their own records; for example, copies of phone bills showing they received a call from one of defendants’ numbers, or potentially with sworn statements providing sufficient details.  In reaching this ruling, Judge Kennelly noted that it would be “fundamentally unfair” to restrict class membership to people only identified on defendants’ records because that could result in “an incentive for a person to violate the TCPA on a mass scale and keep no records of its activity, knowing it could avoid legal responsibility for the full scope of its illegal conduct.”  After determining that the putative classes were ascertainable, the judge held that plaintiffs had carried their burden on the remaining Rule 23 elements and certified the two classes.  Thus, even when a defendant’s records cannot identify the putative class members, the class may still be certified if plaintiff can establish a viable method to ascertain class membership.

In the second case, Kolinek v. Walgreen Co., # 1:13-cv-04806 (U.S. District Court for the Northern District of Illinois), the plaintiff alleged a TCPA violation because he received automated calls to his cellular phone prompting him to refill a prescription.  Judge Kennelly initially dismissed the case because plaintiff had provided his cellular phone number to the defendant, which the defendant argued constituted “prior express consent.”  On July 7, 2014, however, Judge Kennelly reconsidered that decision in light of a March 2014 ruling from the Federal Communications Commission (FCC) that “made it clear that turning over one’s wireless number for the purposes of joining one particular private messaging group did not amount to consent for communications relating to something other than that particular group.”  Thus, while providing a cellular number may constitute “prior express consent” under the TCPA, “the scope of a consumer’s consent depends on its context and the purpose for which it is given.  Consent for one purpose does not equate to consent for all purposes.”  Because plaintiff alleged that he had only provided his number for “‘verification purposes.’ … If that is what happened, it does not amount to consent to automated calls reminding him to refill his prescription.”  Accordingly, Judge Kennelly ruled that dismissal of the case under the TCPA’s “prior express consent” exception was not warranted.

In a second opinion, issued August 11, 2014, Judge Kennelly ruled that dismissal was not warranted under the TCPA’s “emergency purposes” exception either.  While FCC regulations define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers,” 47 C.F.R. § 64.1200(f)(4), the FCC has not read that exception to cover calls to consumers about prescriptions or refills.  Noting the absence of such FCC guidance (which the judge observed would “bind the Court”), as well as the paucity of the complaint’s allegations “about the nature or contents of the call,” the judge ruled that he could not dismiss the case without “further factual development.”  Taken together, Judge Kennelly’s rulings in the Kolinek case may allow plaintiffs to survive motions to dismiss even when they admit providing their cellular phone numbers to the defendant.

In many respects, both of these opinions are outliers.  For example, other courts have concluded that providing a cellular number to a company constitutes consent to receive calls on that number.  Moreover, the rulings are fact-specific and thus may not extend beyond the cases at issue.  TCPA plaintiffs, however, will likely seize on these rulings and read them expansively to prolong cases and pressure defendants.  Defendants, therefore, must be aware of these issues and take them into account when defending TCPA cases, especially in the Northern District of Illinois.

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