Birchmeier et al v. Caribbean Cruise Line, Inc. et al

Filing 241

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/11/2014: For the reasons stated in the accompanying decision, the Court grants plaintiffs' motion for class certification [docket no. 146] with one modification. The Court certifies two classes, one for individuals who received cellular phone calls and another for those who received landline calls, each with the following definition: All persons in the United States to whom (1) one or more telephone calls were made by, on behalf, or for the benefit of the Defendants, (2) purportedly offering a free cruise in exchange for taking an automated public opinion and/or political survey, (3) which delivered a message using a prerecorded or artificial voice; (4) be tween August 2011 and August 2012, (5) whose (i) telephone number appears in Defendants records of those calls and/or the records of their third party telephone carriers or the third party telephone carriers of their call centers or (ii) own records prove that they received the callssuch as their telephone records, bills, and/or recordings of the callsand who submit an affidavit or claim form if necessary to describe the content of the call. The class representatives are the named plaintiffs, Grant Birchmeier, Stephen Parkes, and Regina Stone. The Court appoints Jay Edelson of Edelson PC and Scott Rauscher of Loevy & Loevy as class counsel. This case is set for a status hearing on August 20, 2014. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GRANT BIRCHMEIER, STEPHEN PARKES,
and REGINA STONE, on behalf of
themselves and a class of others
similarly situated,
Plaintiffs,
vs.
CARIBBEAN CRUISE LINE, INC.,
ECONOMIC STRATEGY GROUP,
ECONOMIC STRATEGY GROUP, INC.,
ECONOMIC STRATEGY, LLC, THE
BERKLEY GROUP, INC., and VACATION
OWNERSHIP MARKETING TOURS, INC.,
Defendants.

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Case No. 12 C 4069

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Grant Birchmeier, Stephen Parkes, and Regina Stone filed suit on behalf of
themselves and two putative classes of individuals against several entities, including
Caribbean Cruise Line, the Berkley Group, Vacation Ownership Marketing Tours, and
the Economic Strategy Group. Plaintiffs alleged that defendants violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227, by using an artificial or prerecorded voice to
call their cellular and landline phones. Plaintiffs have now moved pursuant to Federal
Rule of Civil Procedure 23(b)(3) for certification of two classes of similarly situated
plaintiffs. For the reasons stated below, the Court grants plaintiffs' motion, with one
modification.

Background
In their consolidated amended complaint, plaintiffs alleged that defendants
worked in concert to make unsolicited calls to individuals without their consent, offering
them free cruise trips in exchange for participation in a political survey. Plaintiffs alleged
that the cruise would be provided by Caribbean Cruise Line (CCL), which would require
passengers to attend a Berkley Group presentation regarding a time share property.
Plaintiffs also alleged that Vacation Ownership Marketing Trust (VOMT) was a
marketing partner of CCL and Berkley, "and all of those entities directly benefited from
the calls" at issue. Consolidated Am. Compl. ¶ 23. The entity conducting the surveys,
plaintiffs alleged, was Political Opinions of America, although plaintiffs alleged the
companies actually conducting the surveys were the Economic Strategy Group (ESG)
defendants or entities that the ESG defendants operated.
In August 2012, defendants moved to dismiss plaintiffs' complaint. The Court
denied defendants' motion. The Court also denied defendants' request to strike
plaintiffs' class action allegations, finding that plaintiffs had plausibly alleged the
necessary elements under Federal Rule of Civil Procedure 23.
Plaintiffs filed their motion for class certification in October 2013. Defendants'
response contained several arguments to the effect that plaintiffs' proposed classes
were not ascertainable, in part because plaintiffs did not have a list of class members or
a viable method for generating one. In plaintiffs' reply brief, they contended that they
had recently received from defendants a list of nearly 175,000 phone numbers of
individuals who "unquestionably received" calls offering free cruises in exchange for
taking a political survey because they "unquestionably received the free cruise call and

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were subsequently transferred to CCL or one of its call centers." Pls.' Reply at 2. In
March 2014, the Court held a hearing on plaintiffs' class certification motion. At the
hearing, the Court asked defendants' counsel whether the classes were ascertainable at
least to the extent of the list of numbers plaintiffs mentioned in their reply brief. Defense
counsel responded, "Basically, yes. I mean, I wasn't willing to come in here and
concede that." Hrng. Trans. at 4:9–12. Defense counsel also stated that "we believe
that the technology exists that you would be able to trace those calls back," id. at 5:2–3,
and that "if you're drilling down the 174[,000], I don't have any argument as to
ascertainability there. We have arguments as to 50 million." Id. at 13:7–9. Following
the hearing, the Court ordered further briefing on plaintiffs' motion in light of ongoing
discovery by which plaintiffs were attempting to identify additional phone numbers to
which the challenged calls were placed.
Discussion
A party seeking class certification bears the burden to "affirmatively demonstrate
his compliance" with the requirements of Federal Rule of Civil Procedure 23. Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Plaintiffs must first satisfy the four
prerequisites of Rule 23(a): the class is so numerous that joinder of all of the class
members is impracticable (numerosity); there are questions of law or fact common to
the proposed class (commonality); the class representative's claims are typical of the
claims of the class (typicality); and the representative will fairly and adequately
represent the interests of the class (adequacy of representation). Fed. R. Civ. P.
23(a)(1)–(4). Second, the proposed class must fall within one of the three categories in
Rule 23(b), which are: "(1) a mandatory class action (either because of the risk of

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incompatible standards for the party opposing the class or because of the risk that the
class adjudication would, as a practical matter, either dispose of the claims of
nonparties or substantially impair their interests), (2) an action seeking final injunctive or
declaratory relief, or (3) a case in which the common questions predominate and class
treatment is superior." Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011); Fed. R.
Civ. P. 23(b)(1)–(3).
In their class certification motion, plaintiffs proposed two classes of individuals in
the United States who received calls "by, on behalf of, or for the benefit of the
Defendants." Pls.' Mot. at 2–3. The calls class members received "purportedly offer[ed]
a free cruise in exchange for taking an automated public opinion and/or political survey"
and "delivered a message using a prerecorded or artificial voice." Id. The classes
plaintiffs proposed differed only in that one included people who received calls on
cellular phones and the other on landline phones. In their supplemental reply brief filed
after the Court's hearing on class certification, plaintiffs proposed a revised definition
applicable to both the landline and cellular phone classes:
All persons in the United States to whom (1) one or more telephone calls
were made by, on behalf, or for the benefit of the Defendants, (2)
purportedly offering a free cruise in exchange for taking an automated
public opinion and/or political survey, (3) which delivered a message using
a prerecorded or artificial voice; (4) between August 2011 and August
2012, (5) whose (i) telephone number appears in Defendants' records of
those calls and/or the records of their third party telephone carriers or the
third party telephone carriers of their call centers or (ii) own records prove
that they received the calls—such as their telephone records, bills, and/or
recordings of the calls.
Pls.' Supp. Reply at 2. Defendants' response to this revision addresses the
ascertainability of the classes, along with the typicality of the named plaintiffs' claims as
well as the manageability and superiority of the classes. In their original response to
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plaintiffs' motion, defendants also challenged the numerosity, commonality, typicality,
and predominance of the classes. The Court will address each of the Rule 23
requirements in turn.
A.

Rule 23(a) requirements
1.

Ascertainability

In addition to the four requirements listed in Rule 23(a), courts have consistently
evaluated a fifth, implied requirement: that the membership of the class be sufficiently
definite or ascertainable. See Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th
Cir. 2012) ("[A] class must be sufficiently definite that its members are ascertainable.");
Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006) (plaintiff must show "that
the class is indeed identifiable as a class" in addition to showing numerosity,
commonality, typicality, and adequacy of representation plus one of the conditions of
Rule 23(b)). As a court in this district has pointed out, a court need not ascertain
"absent class members' actual identities . . . before a class can be certified." Boundas
v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408, 417 (N.D. Ill. 2012). Rather, "[i]t is
enough that the class be ascertainable," with class members to be identified during a
claims administration process if the class prevails. Id.
In their supplemental reply, plaintiffs argue that their revised class definition
restricts class membership to those with ascertainable identities. They contend that
defendants have conceded the ascertainability of the first proposed restriction—those
whose "telephone number appears in Defendants' records of those calls and/or the
records of their third party telephone carriers or the third party telephone carriers of their
call centers." Pls.' Supp. Reply at 2. Plaintiffs say there are about 930,000 such

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numbers, and that they also have 30,000 names and addresses of people "who
purchased vacation packages after receiving one of Defendants' political survey calls."
Id. at 1 n.2. Of the second proposed restriction—those whose "own records prove that
they received the calls—such as their telephone records, bills, and/or recordings of the
calls"—plaintiffs argue such records are "similarly objective." Id. Finally, plaintiffs say
that even if these restrictions provide inadequate corroboration of class membership,
the Court may require putative class members "to submit affidavits or claim forms." Id.
at 3. Defendants argue that each proposed restriction is inadequate to make the class
ascertainable.
a.

List of 930,000 phone numbers

In their original reply brief, plaintiffs said they had received spreadsheets in
discovery from CCL "containing a total of 174,930 unique telephone numbers of
individuals who unquestionably received the free cruise call and were subsequently
transferred to CCL or one of its call centers." Pls.' Reply at 2. Three months later,
plaintiffs indicated in their supplemental reply brief that "they now have a total of
approximately 930,000 unique telephone numbers of class members who
unquestionably received the free cruise calls." Pls.' Supp. Reply at 1 (footnote omitted).
It appears that the list of 930,000 is an expansion of the list of 174,930 numbers of
people receiving the calls described in the class definition (free cruise offer in exchange
for taking political survey, prerecorded or artificial voice, between August 2011 and
August 2012). The numbers, plaintiffs say, are those "identified by Defendants as
having received the transferred calls after the call recipients' completion of the free
cruise survey." Id. at 2 n.4.

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Defendants do not address their concession at the class certification hearing in
this case: that "if you're drilling down [to] the 174[,000], I don't have any argument as to
ascertainability there." Hrng. Trans. at 13:7–9. Plaintiffs contend that defendants'
concession "was a binding judicial admission that Defendants cannot retract now." Pls.'
2d Supp. Reply at 1 n.2. Defendants state that they "do not concede that the 930,000
telephone number list identifies class members," Defs.' Supp. Resp. at 1 n.2, because it
does not indicate subscribers for the numbers in question. Defendants contend that the
numbers represent "nothing more than a class of telephone numbers from 2-3 years
ago, as opposed to a class of identifiable subscribers with standing to bring a TCPA
claim." Defs.' Supp. Resp. at 3. Also, defendants say there is "no practical or
manageable" way to identify the subscribers of the numbers. They concede that "there
are publicly available sources to locate a current subscriber with just a telephone
number," but add that using them would be "onerous and costly." Id. at 9–10.
Defendants appear to be making a two-part argument: first, the people with
numbers on the list of 930,000 do not necessarily have standing under the TCPA,
because plaintiffs cannot prove they were the subscribers for those numbers at the time
they received the calls; and second, the classes are not ascertainable for the same
reason. Defendants base this argument on Soppet v. Enhanced Recovery Co.,
679 F.3d 637, 643 (7th Cir. 2012), where the Seventh Circuit defined "called party"
within the TCPA to mean "the person subscribing to the called number at the time the
call is made." Defendants argue that this means "[o]nly the person subscribing to a
number at the time of a call has" a TCPA claim. Defs.' Supp. Resp. at 2. They also cite
the case for the proposition that "Plaintiffs must propose a method to identify the person

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who subscribed to the called number at the time of the offending call" in order to certify
a TCPA class. Id. at 2.
The Seventh Circuit in Soppet, however, did not hold that "[o]nly the person
subscribing to a number at the time of a call has" a TCPA claim. The TCPA, in
47 U.S.C. § 227, includes the phrase "called party" several times, including in the two
provisions under which plaintiffs bring their claims in this case. Those provisions state
that it is unlawful:
• "to make any call (other than a call made for emergency purposes or made with
the prior express consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice . . . (iii) to any telephone
number assigned to a paging service, cellular telephone service, specialized
mobile radio service, or other radio common carrier service, or any service for
which the called party is charged for the call," 47 U.S.C. § 227(b)(1)(A)(iii); and
• "to initiate any telephone call to any residential telephone line using an artificial
or prerecorded voice to deliver a message without the prior express consent of
the called party . . . ," id. § 227(b)(1)(B).
In Soppet, the Seventh Circuit was concerned with the references to "consent of the
called party" in these provisions. The plaintiffs had cellular phone numbers that
previously belonged to people who, the defendant argued, may have consented to
receive phone calls. This Court had held "that only the consent of the subscriber
assigned to Cell Number at the time of the call (or perhaps the person who answers the
phone) justifies an automated or recorded call." Soppet, 679 F.3d at 639. The Seventh
Circuit evaluated each mention of "called party" in section 227 and "conclude[d] that
'called party' in § 227(b)(1) means the person subscribing to the called number at the
time the call is made." Id. at 643.
Soppet was about the TCPA's express consent defense; the court held that only
the current subscriber's consent matters, not the consent of someone who earlier had
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the same phone number. The court did not hold that the person who actually answers
an otherwise TCPA-violating phone call must be the subscriber for the phone number in
question in order for a violation of the TCPA to occur. To do so would read out the
language "any call" and "any telephone call to any residential telephone line" from
section 227. It would also frustrate the purpose of the statute: to end the "annoyance"
of receiving robocalls on a home phone line and the addition of "expense to annoyance"
when the robocall is made to a cellular phone. Id. at 638; see also Patriotic Veterans,
Inc. v. State of Indiana, 736 F.3d 1041, 1050 (7th Cir. 2013) (referring to "Congress's
goal" in enacting TCPA "to protect the privacy of citizens against unsolicited telephone
calls"). A call remains annoying and intrusive even if the subscriber for the number
dialed is not the one answering. For example, a robocall to a home phone can be
picked up by anyone who is in the home, thus visiting the annoyance and privacy
intrusion on that person, whether or not she pays the phone bill. Likewise, a robocall to
a cellular phone does not necessarily have to be answered by the subscriber. A parent
is often the operative subscriber (i.e., the one who pays) for family plans that include all
calls to and from their children's cellular phones; the child's name may not even be on
the bill or in the provider's records. Also, a subscriber's child or spouse might happen to
answer the subscriber's own cellular phone when a robocall comes in, violating the
privacy of the person who answers the call and leaving the subscriber on the hook for
the expense. In short, defendants' argument that class members may not have
"standing to bring a TCPA claim," Defs.' Supp. Resp. at 3, because they cannot show
that they were subscribers to the phone numbers in question is unpersuasive.1

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Defendants also cite a recent case from this district in which a class was held to be not
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For these reasons, plaintiffs need not establish that the people who received the
calls at the numbers on the list of 930,000 were the actual subscribers; the fact they
received calls is enough to permit them to sue. Defendants still argue, however, that
plaintiffs will not be able to find out who the subscribers were, or that doing so would be
expensive and time-consuming. They contend that "there is no publicly available
source to determine accurately the historical subscriber to a telephone number on a
specific date 2-3 years ago." Defs.' Supp. Resp. at 9. Defendants concede that
plaintiffs could determine current subscribers for those numbers, but they argue that
"[t]he current subscriber may not be the person that subscribed to the telephone number
2-3 years ago." Id. Defendants also say that even if plaintiffs could obtain historical
subscriber information, identifying the subscribers "would be an onerous and costly
task, even if possible." Id. Based on their expert's analysis, they estimate that
generating a list would cost between $5 and $150 "per subscriber or per hour." Id. at 10
(citing Defs.' Supp. Ex. A (Aron Decl.) ¶ 20).
Plaintiffs respond that they need not identify every class member by name at this
point in the litigation, citing a recent Seventh Circuit TCPA case on determination of
class size. See Chapman v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014)
("[A] class can be certified without determination of its size, so long as it's reasonable to

ascertainable "because the plaintiff did not propose a method to identify the subscribers
for calls made over a 4-year time period." Defs.' Supp. Resp. at 2 (citing Jamison v.
First Credit Servs., Inc., 290 F.R.D. 92 (N.D. Ill. 2013)). By that description alone,
Jamison is distinguishable from this case, where plaintiffs have proposed multiple
methods of identifying class members. It is no answer that plaintiffs proposed these
methods in their second supplemental reply, rather than in their first. They were
properly responsive to defendants' argument that the identities of the subscribers for the
numbers on the list of 930,000 were not ascertainable, whereas defendants had
conceded at the March hearing that such numbers were ascertainable.
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believe it large enough to make joinder impracticable and thus justify a class action
suit."). Plaintiffs also contend that they will determine class members' identities "using a
combination of phone numbers in Defendants' records, the records of third-party phone
carriers and third-party database providers." Pls.' 2d Supp. Reply at 2. They argue that
defendants' expert did not say historical subscriber information does not exist, but only
that obtaining it "might take time, and that it might cost money." Id. at 3. This fact, they
argue, does not "have anything to do with whether class members can be identified."
Id.
Defendants contend that their expert Dr. Debra Aron "is not aware of a database
or vendor who can reliably provide the name and address of the owner of a wireless
number at a specified date in the past." Defs.' Supp. Resp. at 2 n.5; see also id. at 9.
Dr. Aron did not say this exactly. Instead, she said there is "no industry-wide database
or vendor of a database that can reliably provide the name and address of the owner of
a wireless telephone number at a specified date in the past." Defs.' Supp. Ex. A at 3
(emphasis added). She then went on to discuss the information kept on file by the
various phone companies, which actually does encompass historical subscriber data.
See id. at 7–8 (going back seven years for Verizon landlines and cellular phones, seven
years for AT&T landlines and cellular phones, for "current subscribers and disconnected
subscribers" at Sprint, seven years at CenturyLink, and two years at Comcast). Dr.
Aron's declaration therefore does not support defendants' contention that the identities
of the subscribers to the phone lines on the list of 930,000 numbers are not
ascertainable. Her descriptions of the cost and time involved in obtaining these
identities may speak to the degree of difficulty of this task, but not whether it is possible.

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As noted earlier, "[i]t is enough that the class be ascertainable." Boundas, 280 F.R.D.
at 417. Further, Plaintiffs state that they will be the ones responsible for identifying
these people. See Pls.' 2d Supp. Reply at 5 ("Plaintiffs will be able to take the
approximately 900,000 unique telephone numbers [defendants] have identified . . . and
obtain their contact information to provide notice from either a third-party database or
from the telephone carriers themselves.").
Defendants' references to their deposition of Richard Kroon do not alter this
analysis. Plaintiffs submitted Kroon's declaration with their first supplemental reply after
oral argument on their class certification motion. In it, Kroon states he is a business
intelligence developer who specializes in "completing complex calculations, designing
and developing specialized user tools, and creating reporting solutions for all types and
sizes of data sets." Pls.' Ex. 45 ¶ 2. Kroon goes on to describe data files he received
from plaintiffs' counsel and how he calculated that there were 928,675 unique phone
numbers in the files. That is the extent of the analysis in Kroon's declaration. In taking
Kroon's deposition, however, defendants asked whether he knew how to identify a
human being associated with a phone number. He responded that he did not know and
had not heard of an "industry-wide database that might be available for that purpose."
Defs.' Supp. Ex. C at 42:17–25, 43:1–5. In their latest brief, defendants point to this
answer and to the fact that "Kroon candidly admitted that Plaintiffs did not ask him to
and so did not make any effort to determine the name of the subscribers to the
telephone numbers on his list." Defs.' Supp. Reply at 3 & n.11. Given the limited nature
of Kroon's assignment, it is unclear why defendants would expect Kroon to know how to
match names to telephone numbers. Regardless, Kroon's answers do not show that

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the names associated with numbers on the list are not ascertainable; they show only
that Kroon doesn't know. Also, as plaintiffs point out, they were not aware when they
secured Kroon's services that defendants would attempt to contradict their admission at
the hearing that the classes are ascertainable from the list of numbers plaintiffs had
obtained to that point. Other than the general point that Kroon did not provide or obtain
names for the list of 930,000 numbers, which plaintiffs do not dispute, his declaration
and deposition do not help defendants' argument.
Given these points, it is fairly clear that the identities of the persons whose
numbers are on plaintiffs' list of 930,000—indeed, the subscribers for those numbers at
the time defendants called them—are sufficiently ascertainable.
b.

Class membership documented via phone records

Plaintiffs' second way to identify class members requires an individual to have
"records prove that [she] received the calls—such as [her] telephone records, bills,
and/or recordings of the calls." Pls.' Supp. Reply at 2. Plaintiffs also propose to
supplement this documentary proof of class membership by having putative class
members submit "affidavits or claim forms" regarding the content of the call, when the
person received it, and who the call claimed to be from. Id. at 3. This, plaintiffs say,
could come in the form of a questionnaire administered during the claims administration
process. In sum, plaintiffs propose, "individuals not appearing in the call detail records
described in the class definition would be entitled to relief only if they could correctly
identify the call(s) they received based on the above objective criteria and by providing
supporting documentation." Id. at 4.
One question is how the phone numbers appearing on putative class members'

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phone bills would demonstrate membership in the classes. In their supplemental reply,
plaintiffs state that they have identified sixty numbers that the ESG defendants "used in
connection with the calls at issue," pointing to two letters from ESG's attorney to the
Missouri Attorney General's office and a list of numbers to which ESG subscribed. Pls.'
Supp. Reply at 3 (citing Pls.' Exs. 46–47). Plaintiffs say that putative class members
could establish class membership with records that they received calls from these
numbers. One of the letters from ESG to the Missouri Attorney General's office
references a number that "was used by ESG in connection with a political campaign that
ran for one day on March 6, 2012." Pls.' Ex. 46 at 1. The other letter lists eight
numbers (including the one from the first letter); it states that "each and every call
completed" from those numbers included "political surveys via pre-recorded messages"
and that those participating in the surveys were offered a "free incentive" in exchange
for doing so. Id. at 2–3. The other exhibit plaintiffs reference is a list of phone numbers
they received via a subpoena to Bandwidth.com; it is entitled "Economic Strategy
Group, Inc. Telephone Number History." Pls.' Ex. 47.
Although defendants contend that these lists do not describe the content of the
calls made from the listed numbers, the letter with the list of numbers that ESG's
attorney provided to the Missouri Attorney General clearly does so. It described political
survey calls each of which included a "free incentive" offer. Although the letter does not
identify the "incentive" as a cruise, defendants do not argue that ESG ever offered any
other incentive in connection with these calls. Indeed, ESG owner Jacob DeJongh, who
testified in a deposition for this case, was asked if "anything else [was] ever offered"
during the calls he made other than a free cruise. CCL-VOMT Ex. D at 98:4–6. He

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responded, "No. I didn't offer anything else." Id. at 98:7. CCL and VOMT argue in their
original response to the class certification motion that thirty to forty percent of ESG's
calls did not include a cruise offer. CCL-VOMT Resp. at 12. But individuals with
records proving they received a call from one of the numbers on the Missouri Attorney
General letter discussing the political survey/"free incentive" calls almost certainly are
class members who would need to provide only these records to prove as much.
The ESG "Telephone Number History" list obtained from Bandwidth.com does
not reference the content of the calls made from those numbers. For this reason,
plaintiffs propose "corroborat[ion of] class members' own records" with an affidavit or
claim form process. Pls.' Supp. Reply at 3. Defendants contend such a process would
not be practical or reliable and that "the vagaries of putative class member's [sic]
memories" render plaintiffs' proposed affidavit procedure inferior, because "[s]oliciting
affidavits from putative class members . . . would invite them to speculate, or worse."
Id. at 6–7. Defendants also cite a number of district court cases in which courts refused
to permit similar affidavit processes for class member identification to proceed.
Defendants' arguments, however, primarily assume a class or claim identification
process that is based on affidavits alone, not the combination of documentary evidence
and a sworn statement that plaintiffs propose. See, e.g., Brey Corp. v. LQ Mgmt. LLC,
Civil No. JFM-11-718, 2014 WL 943445, at *1 (D. Md. Jan. 30, 2014) ("A putative class
member would be able to establish his, her, or its standing only by submitting an
affidavit that he, she or it had received the unsolicited fax."); In re Yasmin & Yaz
(Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2100, 2012 WL
865041, at *15 (S.D. Ill. Mar. 13, 2012) (proposal of two-part questionnaire without

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mention of submission of evidence from class members). In one of defendants' cases
where plaintiffs suggested that putative class members offer proof of class membership
in the form of a receipt or product label, the court observed that plaintiffs "offer[ed] no
basis to find that putative class members will have retained" such documentation.
Weiner v. Snapple Beverage Corp., No. 07 Civ. 8742, 2010 WL 3119452, at *13
(S.D.N.Y. Aug. 5, 2010). Here, by contrast, plaintiffs contend that class members "likely
will be able to order copies from their telephone service providers, as Plaintiffs
themselves did." Pls.' Supp. Reply at 3 n.6.
In addition, limiting the classes only to those person's whose membership can be
proved by reference to some other party's records is fundamentally unfair to potential
class members. Defendants have provided in discovery a list of phone numbers of
those who received the offending calls, and defendants now argue the classes should
be limited only to the records defendants themselves have produced. (In fact, they
argue that even the records they have produced are not sufficient for class certification.)
In other words, defendants are essentially arguing that the contours of the class should
be defined by defendants' own recordkeeping. This would result in an artificial class
definition that would leave out individuals who actually received the calls in question—
an unquestionably objective criterion—and who possess a record that is at least
circumstantial evidence of class membership, a picture they can complete with their
own sworn statements. Doing this—or declining to certify a class altogether, as
defendants propose—would create an incentive for a person to violate the TCPA on a
mass scale and keep no records of its activity, knowing that it could avoid legal
responsibility for the full scope of its illegal conduct. The Court does not agree that the

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classes should be limited in the way defendants propose.
The Court therefore concludes that plaintiffs' second method of identifying class
members satisfies the requirement of ascertainability. Should a putative class
member's records fail to indicate that she received a political survey call with a free
cruise incentive, she may in addition to her records provide a sworn statement at an
appropriate point during the litigation. The Court will address below defendants'
arguments regarding the manageability of this process.
2.

Numerosity

Rule 23(a)(1) requires the class to be "so numerous that joinder of all members is
impracticable." Courts have found that a class of forty is, or at least can be, sufficiently
large to satisfy Rule 23(a)(1). See Pruitt v. City of Chicago, 472 F.3d 925, 926–27 (7th
Cir. 2006); Costello v. BeavEx Inc., No. 12 C 7843, 2014 WL 1289612, at *8 (N.D. Ill.
Mar. 31, 2014). In initially responding to plaintiffs' motion, defendants CCL and VOMT
briefly argue that the proposed classes are not sufficiently numerous because plaintiffs
"never establish[ed] even in general terms a number of putative class members." CCLVOMT Resp. at 17. The Court has concluded above that the classes, which contain
significant numbers of members, are sufficiently ascertainable. Considering this
conclusion, and the fact that there are over 900,000 members, the proposed classes
are sufficiently numerous.
3.

Commonality

Rule 23(a)(2) requires "questions of law or fact common to the class." To show
commonality, plaintiffs must demonstrate that the class members' claims "depend upon
a common contention" which is "of such a nature that it is capable of classwide

17

resolution." Wal–Mart Stores, 131 S. Ct. at 2551. In this inquiry, "for purposes of Rule
23(a)(2), even a single common question will do." Id. at 2556 (internal alterations and
quotation marks omitted). Relying on the Supreme Court's decision in Wal–Mart, the
Seventh Circuit has explained that to establish commonality, a plaintiff must show that
the class members all "suffered the same injury." Jamie S., 668 F.3d at 497 (citing
Wal–Mart, 131 S. Ct. at 2551); Bolden v. Walsh Constr. Co., 688 F.3d 893, 896 (7th Cir.
2012). Superficial common questions are insufficient to satisfy Rule 23(a)(2). Jamie S.,
668 F.3d at 497.
Plaintiffs contend that the proposed classes' "single contention" is that
defendants made or benefited from "robocalls that utilized a prerecorded voice to send
the same type of message, from the same person, using the same technology,"
producing "several common and controlling factual and legal questions." Pls.' Mot. at
12. Plaintiffs proceed to outline five questions they contend are common to the classes,
including "whether each defendant can be held commonly liable to Plaintiffs" and
"whether Defendants' survey calls utilized an artificial or prerecorded voice." Id. at 12–
16. Defendants respond to each purported common question largely by contending that
plaintiffs cannot identify class members and thus cannot show common questions
among them. Defendants also argue that there are dissimilarities among the
experiences of the class members, such as whether they participated in the political
survey, the length of each call, and the cellular phone plan of each cellular phone
plaintiff. Finally, citing district court cases from other circuits, defendants contend that
the classes will feature "different defenses and damages" because they "include
unanswered calls, calls to disconnected telephone numbers and calls where the

18

recipient hung up immediately before completing the political survey or hearing about a
free cruise, if any." CCL-VOMT Resp. at 22.
The parties' arguments on commonality were filed before plaintiffs modified their
proposed class definitions to restrict membership to those for whom defendants' records
or their own records show they belong in the classes. As plaintiffs note, only
"individuals, to the extent they have records of the calls, are provided with relief" under
the revised class definitions. Pls.' Supp. Reply at 1 n.3. Further, defendants' argument
does not track the language in the class definitions. Those who are members of one of
the proposed classes by definition received the same calls offering a free cruise in
exchange for a political or public opinion survey, made by or for one of the defendants,
using the same artificial or prerecorded voice technology. This is a common alleged
injury presenting a common question. Defendants' commonality arguments are related
largely to how one determines who is in the classes, which is not responsive to whether
there are common issues among those who are class members. The commonality
inquiry differs from the question of ascertainability. Here there is a common injury,
resulting from receipt of the allegedly offending calls, not to mention common questions
regarding the liability of the defendants who did not themselves place the calls. The
Court likewise determines that there are questions of law or fact common to each class
member.
4.

Typicality

Rule 23(a)(3) requires class plaintiffs to show that "the claims or defenses of the
representative parties are typical of the claims or defenses of the class." This
requirement "directs the district court to focus on whether the named representatives'

19

claims have the same essential characteristics as the claims of the class at large."
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). Plaintiffs contend that the
"essential characteristics" of named plaintiffs' claims are "practically identical" to those
of the proposed classes at large because they received calls offering a free cruise in
exchange for answering an automated political survey. Pls.' Mot. at 17.
Defendants contend that the named plaintiffs "are not typical of the proposed
class(es)" because their "claims do not appear on the list" of 930,000 numbers plaintiffs
have obtained. Defs.' Supp. Resp. at 1. However, the Court has concluded that the
proposed classes are ascertainable not only as to the list of 930,000 numbers but also
as to those whose own records (plus, in some situations, affidavits) establish their
membership. Although the named plaintiffs' phone numbers are not on the list of
930,000, they "have each testified about the content of Defendants' free cruise calls and
produced numerous telephone phone records evidencing their receipt." Pls.' Supp.
Reply at 7 n.11. Although this assertion does not include a citation to the record,
plaintiffs elsewhere have pointed to the named plaintiffs' various depositions and
answers to interrogatories detailing the content, dates, and times of the calls they
received. This would place the named plaintiffs within plaintiffs' second proposed
method of identifying class members: through presentation of their own records
combined with a sworn statement about the content of their phone calls. For this
reason, and because the named plaintiffs received the same type of call as the other
class members, their claims are typical of those of the class.2

2

Defendants' other arguments on the typicality of the named plaintiffs' claims date from
before plaintiffs altered their class definition. Regardless, those arguments largely did
not concern the typicality of the named plaintiffs' claims, but rather pointed out that there
20

One issue plaintiffs should consider as this litigation proceeds is whether they
should designate additional class representatives, a possibility plaintiffs themselves
raise in their supplemental memoranda. See id. ("[O]ther putative class members who
do appear in those records have indicated that they are interested in, and willing to,
serve as named plaintiffs in this case."). Plaintiffs may be well-advised to do so,
considering the fact that the named plaintiffs appear to represent only those class
members whose membership is determined via plaintiffs' second proposed identification
method. The classes as a whole likely would benefit from having class representatives
whose phone numbers appear on the list of 930,000 that plaintiffs have presented.
5.

Adequacy

Rule 23(a)(4) requires that the named plaintiffs and class counsel "will fairly and
adequately protect the interests of the class." On this question, courts look to "the
adequacy of the named plaintiffs as representatives of the proposed class's myriad
members, with their differing and separate interests." Gomez v. St. Vincent Health, Inc.,
649 F.3d 583, 592 (7th Cir. 2011). The adequacy and typicality requirements "tend[ ] to
merge." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (internal
quotation marks omitted). The Seventh Circuit has concluded, for example, that
conflicts of interest can counsel against a finding of adequacy. Johnson v. Meriter
Health Servs. Emp. Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012). Also, a class
representative with "serious credibility problems . . . may not be an adequate class

likely would be inconsistencies in the experiences of each plaintiff when receiving the
calls in question. Defendants argue that some of the named plaintiffs did not participate
in the survey offering a free cruise or ask to be transferred to CCL. The TCPA violation,
however, is complete upon receive of the pertinent call; it does not require the survey to
be taken or the transfer to CCL to be made.
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representative." CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726
(7th Cir. 2011).
Defendants do not take issue with the adequacy of class counsel. They contend,
however, that the named plaintiffs are inadequate and have conflicts with their fellow
class members. They say plaintiff Stone "could not match those calls identified in her
interrogatories to her telephone records" and kept "no notes" on the calls. CCL-VMT
Resp. at 25. They also argue that plaintiffs Birchmeier and Stone failed to keep records
of their research on the calls they received, and that none of the named plaintiffs had
heard of CCL, VMT, or Berkley, which means they are inadequate because their claims
are "being driven by someone else." Id. Yet defendants have not explained how these
contentions, if taken as true, are fatal to the named plaintiffs' adequacy as class
representatives or their credibility. There is no requirement for a class representative to
research or keep notes on her claims, nor do defendants cite a case suggesting such a
requirement. In short, defendants' arguments in this regard are unpersuasive. In
addition, the fact that the proposed representatives have offered records and have
submitted to questioning in depositions about the phone calls they received reflects that
they are satisfying the duties associated with a role the Seventh Circuit has labeled
"nominal." See Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1080 (7th Cir. 2013).
Further, defendants do not identify any conflict of interest between the named
representatives and the rest of the classes, but rather point out theoretical
inconsistencies in the experiences of other class members. This argument does not
speak to the adequacy of the named plaintiffs as class representatives. Considering
these conclusions, the Court agrees with plaintiffs that the class representatives are

22

adequate.
B.

Rule 23(b)(3) requirements
1.

Predominance

Under Rule 23(b)(3), plaintiffs must show that "the questions of law or fact
common to class members predominate over any questions affecting only individual
members." A court evaluating predominance must "test[ ] whether proposed classes
are sufficiently cohesive to warrant adjudication by representation." Amchem Prods.,
521 U.S. at 623. This is a "more demanding" element than those listed in Rule 23(a).
Comcast Corp v. Behrend, 133 S. Ct. 1426, 1433 (2013). The Seventh Circuit has
stated that the predominance inquiry "requires a qualitative assessment" and is not akin
to "bean counting" or "counting noses." Butler v. Sears, Roebuck & Co., 727 F.3d 796,
801 (7th Cir. 2013).
That said, plaintiffs seeking to certify a class need not show "common results for
members of the class" in addition to "common evidence and methodology" to satisfy the
predominance requirement. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802,
819 (7th Cir. 2012). They also "need not . . . prove that the predominating question will
be answered in their favor." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct.
1184, 1196 (2013).
Plaintiffs contend that common issues predominate because "Defendants
employed uniform practices with regard to each class member," including using the
same dialing system to deliver recorded messages, all offering a free cruise in
exchange for taking a political survey. Pls.' Mot. at 20. Defendants argue that
individualized issues predominate. They contend that the Court would have to conduct

23

mini-trials to decide whether an individual should fit in the landline or cellular phone
class and that plaintiffs "fail to present a scientific method that will enable them to prove
individual issues will not predominate over common issues." CCL-VOMT Resp. at 27.
Specifically, they argue that the Court would have "to determine whether an individual
fits within one of the proposed classes, whether any of the Defendants (and if so, which
Defendants) are responsible to a particular class member, whether any defenses apply,
and the damages recoverable (if any)." Id. They also contend that the "gathering" of
"individualized 'proof'" from class members would be "inherently flawed" as it would be
based on class members' "bare recollection[s]." Id. at 28.
The Court does not agree that the litigation would be "overwhelmed by . . .
individual questions" if the Court certifies the proposed classes. CCL-VOMT Resp. at
27. As noted earlier, the common question among class members is whether they
received calls fitting the description in the class definitions. These definitions do not
leave much room for variation and are undoubtedly common to each class member:
offer of a free cruise; offer made in exchange for participation in a political or public
opinion survey; use of a prerecorded or artificial voice; date of call; by, on behalf of, or
for the benefit of defendants. Defendants have not shown that any of these elements
will be subject to variation among those described in the proposed class definitions. To
put it another way, whether a particular defendant is liable is not an individual issue
among class members. The same applies to defendants' argument that the Court
would have to determine whether any defenses apply; they have not persuasively
argued that defenses can or would vary among class members. Furthermore,
defendants' contention about calculation of individual damages is a non-issue in terms

24

of predominance. Plaintiffs are asking only for statutory damages, which eliminates
individual variations. See Pls.' Reply at 14 ("Plaintiffs seek to recover statutory and not
actual damages.").
Moreover, plaintiffs' revised class definitions largely address defendants'
arguments on predominance. There need not be individualized inquiries of those with
numbers on the list of 930,000 who unquestionably received the calls in question.
Membership in the classes deriving from that list would not require probing into the
memory of person with a number on the list. As for those putative class members who
enter the classes via submission of their own records, or their records plus sworn
statements, their class membership will plainly not rest on "bare recollection" alone;
they must also submit objective evidence. Any difficulty involved in this process is more
appropriately addressed under the manageability factor encompassed in the Rule
23(b)(3) inquiry, which the Court examines below. Regardless, arguments about
whether someone belongs in the classes do not speak to whether common questions
predominate among class members; those who are in the classes will be those who can
document that they meet the class definitions. Rather, these arguments go to whether
an individual may join the classes, which is a different question.
In sum, the Court concludes that there is predominance of common questions
among members of plaintiffs' proposed classes.
2.

Manageability

One factor considered in evaluating whether a class should be certified under
Rule 23(b)(3) is "the likely difficulties in managing a class action." Fed. R. Civ. P.
23(b)(3)(D). The manageability question "encompasses the whole range of practical

25

problems that may render the class action format inappropriate for a particular suit."
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974).
In arguing that plaintiffs' proposed classes are not manageable, defendants first
renew their argument that it will be either impossible or else costly and onerous to
obtain the identities of the subscribers for the phone numbers on the list of 930,000.
See Defs.' Supp. Resp. at 8–10. The Court has largely addressed this argument above.
Defendants' own expert has stated that it is possible to obtain historical subscriber
information from each carrier, and plaintiffs have stated that they will obtain the
information.
Defendants also take issue with the manageability of the classes regarding the
category of those who obtain membership through a combination of documentary
evidence and a sworn statement. Defendants contend that an affidavit procedure in this
case would be "daunting and unwieldy" and require "arduous individualized inquiries."
Defs.' Supp. Resp. at 8. Plaintiffs maintain that the affidavit process could "employ
imaginative solutions," such as posing a standard set of questions to putative class
members about the calls they received. Pls.' Supp. Reply at 6. Plaintiffs alternatively
propose that the Court could appoint a magistrate judge or special master to administer
claims, create subclasses, or alter or amend the classes. Id. (citing Carnegie v.
Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir. 2004)).
Defendants do not respond in particular to any of these ideas. The Court can
make a decision at a later point in this litigation about the specific nature of the process
for permitting individuals in this category to demonstrate their class membership. At
present, however, there is no indication that this sort of a process, whatever form it

26

takes, will prove unduly cumbersome. Indeed, there is a good chance that, given the
requirement to have separate documentation, the sworn statement process will not
produce a torrent of putative class members or anything close to it. In short, it would be
imprudent for the Court to presume a problem before one occurs. Moreover, as
plaintiffs note, district courts have considerable flexibility in fashioning solutions to
manageability issues that arise in class action litigation. See Kartman v. State Farm
Mut. Auto Ins. Co., 634 F.3d 883, 888 (7th Cir. 2011) ("[T]he district court has
substantial latitude in the management of complex class-action litigation."). The Court
will have the ability to fashion a solution that fits the particular circumstances of this
case, and defendants do not contend otherwise.
Defendants also argue that plaintiffs have not outlined a notice plan and that
"there is simply no way that Plaintiffs can identify and contact the recipients of more
than 50 million calls." CCL-VOMT Resp. at 30. In a later memorandum, defendants
repeat the point that plaintiffs have offered no proposal for effectuating notice in this
case. See Defs.' Supp. Resp. at 10. To the contrary, however, plaintiffs have proposed
several methods for notifying potential class members of their claims: "To be sure, such
notice could easily be circulated in nationwide newspapers and magazines, through an
online media campaign, and even on Defendants' websites and online complaint
boards, which the potential class members here are likely to view." Pls.' Reply at 24.
They argue that this sort of a notice program would comply with Rule 23(c)(2), which
requires the court to direct "the best notice that is practicable under the circumstances,
including individual notice to all members who can be identified through reasonable
effort." The Seventh Circuit has stated that the rule requires "only the best notice that is

27

practicable." Hughes v. Kore of Ind. Enter., Inc., 731 F.3d 672, 676–77 (7th Cir. 2013)
(internal quotation marks omitted). The court noted that "[w]hen reasonable effort would
not suffice to identify the class members, notice by publication, imperfect though it is,
may be substituted." Id. Plaintiffs' proposed methods of notice fall squarely within this
line of reasoning. Given that the number of class members approaches and possibly
exceeds one million persons, it is likely that there will not be a practicable way to reach
each person individually, making broad-based forms of notice appropriate.
Considering defendants' lack of response to (or even acknowledgment of)
plaintiffs' proposals, and the fact that notice by publication is acceptable in these
circumstances, the Court declines to conclude that the classes would be unmanageable
on notice grounds.
3.

Superiority

Another requirement under Rule 23(b)(3) is that "a class action is superior to
other available methods for fairly and efficiently adjudicating" the particular controversy.
This, along with the predominance requirement of Rule 23(b)(3), is intended "to cover
cases in which a class action would achieve economies of time, effort, and expense,
and promote uniformity of decision as to persons similarly situated, without sacrificing
procedural fairness or bringing about other undesirable results." Amchem Prods.,
521 U.S. at 615 (internal quotation marks and alterations omitted).
Plaintiffs contend that class treatment is a superior vehicle for their claims
because the TCPA does not provide for fee-shifting, meaning potential statutory
damages "would likely be dwarfed by the attorneys' fees and costs needed to get there."
Pls.' Mot. at 20. They also argue that litigation of individual claims of class members

28

would be inefficient and that class treatment would provide finality and consistency.
Defendants respond that a class action is not a superior vehicle for this case
because "Congress felt statutory damages provided sufficient incentive" for TCPA
claims. Defs.' Supp. Resp. at 11; see also CCL-VOMT Resp. at 30 ("[T]he $500/$1,500
damages involved on an individual basis is incentive enough to bring a small claims
case."). Whether or not that is true, it does not mean the claims cannot be bound
together in a class action, in which each plaintiff still would be entitled to his individual
statutory damages. Defendants add that CCL has defended against TCPA cases in
other venues, such as "small claims, trial and even federal courts." Id. Again, this does
not imply that the class action in this case would not be a superior way of binding
individual claims together given the efficiencies the class action mechanism creates. In
this case, plaintiffs have alleged that defendants chose to violate the TCPA on a very
large scale by targeting a million or more people with inappropriate calls. Individual
litigation of the claims of each individual would not be a superior or efficient way to
resolve the claims.
Defendants go on to argue that leaving the determination of which class
members are entitled to damages to a special master or claims administrator would
create "a windfall" to those who are not cut from the class. Id. at 12. This is because, in
defendants' telling, those who are eliminated from the class would not be compensated
for actual damages but instead would receive "statutory damages, which were awarded
to someone who should never have been in the class, would then inure to the benefit of
those remaining in the class." Id. This argument assumes that there would be an
award of a total amount of statutory damages based upon the total number of class

29

members, which then would not be reduced if individuals are eliminated from the class
in some post-litigation claims administration process. This argument is thus quite
speculative, to say the least, and it makes unwarranted assumptions about what the
Court might do in a far-off stage of litigation. The argument is not a basis to say that
joinder in a class action of nearly a million claims, each of relatively modest dollar value,
is not superior to individual litigation of those claims.
Defendants also argue that the potential liability in this case is "ruinous" and
could be "in the billions," which is "well beyond what Congress established." Defs.'
Supp. Resp. at 11–12; CCL-VOMT Resp. at 30. But as plaintiffs point out, the Seventh
Circuit has rejected this argument as a barrier to class certification. See Murray v.
GMAC Mortg. Corp., 434 F.3d 948, 953–54 (7th Cir. 2006). In Murray, the court
observed that the potential for substantial damages resulting from statutory damages to
class members lies in Congress's formulation of those damages and does not involve
an abuse of the class action mechanism. Id. at 953. Should a damages award prove to
be unconstitutionally excessive, it may be reduced, but "after a class has been
certified," not before. Id. at 954. Further, determination of liability for any given
defendant will happen later, and there could be a finding of no liability as to some or all
defendants. Speculation about how that might come out is not an appropriate barrier to
class certification. Defendants also link their ruinous liability argument to the cost of
identifying putative class members, stating again that "Plaintiffs did not provide a
workable method to identify and manage the proposed class(es)." Defs.' Supp. Resp.
at 12. The Court need not address this point again, other than to say that in view of the
class membership identification mechanisms proposed, a conclusion that the cost

30

involved will be excessive amounts to unwarranted speculation.
In sum, the Court concludes that the class action is a superior device for litigation
of plaintiffs' claims.
Conclusion
For the reasons stated above, the Court grants plaintiffs' motion for class
certification [docket no. 146] with one modification. The Court certifies two classes, one
for individuals who received cellular phone calls and another for those who received
landline calls, each with the following definition:
All persons in the United States to whom (1) one or more telephone calls
were made by, on behalf, or for the benefit of the Defendants, (2)
purportedly offering a free cruise in exchange for taking an automated
public opinion and/or political survey, (3) which delivered a message using
a prerecorded or artificial voice; (4) between August 2011 and August
2012, (5) whose (i) telephone number appears in Defendants’ records of
those calls and/or the records of their third party telephone carriers or the
third party telephone carriers of their call centers or (ii) own records prove
that they received the calls—such as their telephone records, bills, and/or
recordings of the calls—and who submit an affidavit or claim form if
necessary to describe the content of the call.
The class representatives are the named plaintiffs, Grant Birchmeier, Stephen Parkes,
and Regina Stone. The Court appoints Jay Edelson of Edelson PC and Scott Rauscher
of Loevy & Loevy as class counsel. This case is set for a status hearing on August 20,
2014.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 11, 2014

31