A.D. a minor, et al v Transworld Systems, Inc.

Filing 90

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/12/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies Transworld's motion for partial summary judgment [dkt. no. 62] and denies its request to strike the class allegations. (mk)

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

RENEE GOGGANS, RONALD FRENCH,
and TIFFANY CAHILL, individually and
on behalf of all others similarly situated,
Plaintiffs,
vs.
TRANSWORLD SYSTEMS, INC.,
Defendant.

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Case No. 16 C 2387

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Renee Goggans, Ronald French, and Tiffany Cahill filed a class-action complaint
against Transworld Systems, Inc., alleging that Transworld made debt-collection phone
calls using an autodialer in violation of the Telephone Consumer Protection Act (TCPA),
47 U.S.C. § 227, the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692,
and the Rosenthal Act, Cal. Civ. Code § 1788. Transworld has moved for summary
judgment on the TCPA claims brought by Goggans and asks the Court to strike the
class allegations from the complaint. For the reasons stated below, the Court denies
Transworld's motion for partial summary judgment as well as the request to strike the
class allegations.

Background 1
In April 2012, Goggans went to Pacific Beach Urgent Care in San Diego,
California for medical treatment. At that time, she completed a patient registration form.
See Def.'s Am. Statement of Undisputed Material Facts (ASUMF), Ex. B (Avila Decl.) at
TSI 002. She provided a cellular phone number ending in 6507 in two locations on the
form: once in the patient information section and once in the responsible party section.
Pls.' Resp. to Def.'s ASUMF ¶ 6. She did not provide any insurance information, and
Pacific Beach marked her in its records as a private payer. See Avila Decl. at TSI 001–
002. Goggans alleges that she paid in full for the services at the time of the
appointment. See Pls.' Opp'n to Def.'s Am. Mot. for Partial Summ. J. (Pls.' Opp'n) at 3–
4.
Despite this, Pacific Beach transferred Goggans' account to Transworld, a debtcollection company, apparently indicating that Goggans still owed money for these
services. Def.'s ASUMF, Ex. C (Klein Decl.) ¶¶ 8–9. Pacific Beach provided
Transworld with the cell phone number ending in 6507 as Goggans' contact number.
Transworld began contacting Goggans in March 2013 to attempt to collect payment.
The parties dispute the number of calls that occurred between March 2013 and May
2015, and they also dispute whether Goggans actually spoke with anyone during these
calls. Jonathan Klein, Transworld's senior compliance manager, reviewed the
company's records on Goggans' account and states that up until May 28, 2015, every
call that Transworld placed to Goggans' cell phone was disconnected after Goggans

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Because Transworld has moved for summary judgment only on claims brought by
Goggans, the Court does not discuss the factual background relating to French and
Cahill.
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answered but before the call was transferred to a Transworld representative. Id. ¶ 15.
Klein—who did not participate in any of the calls—also says that none of these calls
resulted in conversation with Goggans or a request by Goggans that Transworld stop
contacting her. Id. ¶ 16.
Goggans provides a different version of events during this time period. She says
that Transworld called her over 300 times during this 26-month period. Pls.' Resp. to
Def.'s ASUMF ¶ 17. She also testified during her deposition that she repeatedly told
them to stop calling. See Pls.' Resp. to Def.'s ASUMF, Ex. B (Goggans Dep.) at 23:4–
10, 83:14–85:24, 127:20–23, 128:24–130:8. Goggans testified that she often did this as
soon as she picked up the phone, before the caller had the chance to launch into his
pitch. Id. at 133:10–134:1.
The parties agree, however, that Goggans spoke with a Transworld
representative on May 28, 2015. Pls.' Resp. to Def.'s ASUMF ¶ 18. A Transworld
employee called Goggans and told her that she was calling about the Pacific Beach
account with a balance of $90.24. Klein Decl., Ex. 1. Goggans stated that she was
unaware that she owed Pacific Beach any money. Id. She indicated that she would
contact Pacific Beach and asked Transworld for an account number she could
reference. Id. During this conversation, Goggans never asked Transworld to stop
calling her regarding the Pacific Beach account. The parties agree that Transworld did
not call Goggans after the May 2015 conversation. Pls.' Resp. to Def.'s ASUMF ¶ 20.
Goggans filed a class-action complaint in February 2016, naming as plaintiffs
herself and a minor who allegedly received similar calls from Transworld. In October
2016, Goggans filed an amended complaint removing the minor as plaintiff and adding

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another class claim. In January 2017, Goggans filed a second amended complaint
adding French and Cahill as named plaintiffs. In count 1, plaintiffs allege that
Transworld negligently violated the TCPA by calling them using an autodialer or artificial
voice without their consent. Second Am. Compl. ¶¶ 99–105. Plaintiffs allege in count 2
that Transworld's violations of the TCPA were knowing or willful. In count 3, Goggans
alone alleges that this same conduct violates the FDCPA and that Transworld further
violated the FDCPA by calling her from a phone number designed to mimic her
geographic location (i.e. with an area code from her geographic area). See id. ¶¶ 90,
106–08. Goggans alleges in count 4 that this same conduct violates California's
Rosenthal Act. Id. ¶¶ 109–12. The three plaintiffs also seek to certify two classes, one
for the claims brought under the TCPA and one for the claim brought under the FDCPA.
Id. ¶¶ 88–98. The proposed TCPA class includes all persons whose cell phone number
was called by Transworld using an autodialer or an artificial voice in the four years prior
to the filing of this action, excluding those who Transworld called for emergency
purposes. Id. ¶ 89. The proposed FDCPA class includes all persons who live in
California and received a call from Transworld, in the year prior to the filing of this
action, in which Transworld used an area code assigned to California. Id. ¶ 90.
Discussion
Transworld has moved for summary judgment on Goggans's claims in counts 1
and 2 and also asks the Court to strike the class claims asserted in the second
amended complaint. Transworld argues that Goggans expressly consented to receiving
phone calls on her cell phone and never revoked that consent. Transworld also argues
that the class claims should be stricken because the issue of consent is an individual

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issue that defeats the predominance requirement for class certification under Federal
Rule of Civil Procedure 23(b)(3).
When reviewing a motion for summary judgment, the Court examines the record
in the light most favorable to the non-moving party and makes all reasonable inferences
in her favor. Lox v. CDA, Ltd., 689 F.3d 818, 821 (7th Cir. 2012). Summary judgment is
appropriate when there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. McKinney v. Cadleway Props., Inc., 548
F.3d 496, 500 (7th Cir. 2008).
I.

Consent under the TCPA
A.

Prior express consent

The TCPA makes it illegal to use an automatic telephone dialing system or an
artificial or prerecorded voice to call a cell phone number, unless the call is for
emergency purposes or the caller has the prior express consent of the called party. 47
U.S.C. § 227(b)(1)(A)(iii). Prior express consent is an affirmative defense on which the
defendant bears the burden of proof. See Zeidel v. YM LLC USA, No. 13 C 6989, 2015
WL 1910456, *2 (N.D. Ill. Apr. 27, 2015); Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F.
Supp. 2d 898, 905 (N.D. Ill. 2012); Charvat v. Allstate Corp., 29 F. Supp. 3d 1147, 1149
(N.D. Ill. 2014); see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044
(9th Cir. 2017); cf. In the Matter of Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991 (”2008 FCC Order"), 23 F.C.C.R. 559, 564–65 ¶ 10 (2008).
The TCPA does not provide a standard for determining when a party has given
prior express consent, but the FCC has issued guidance on the issue, which is binding
on this Court under the Hobbs Act. See Williams v. Capital One Bank (USA), N.A., No.

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16-3850, 2017 WL 1155356, at *1–2 (7th Cir. Mar. 28, 2017). The FCC has determined
that providing a cell phone number to a creditor "reasonably evidences prior express
consent by the cell phone subscriber to be contacted at that number regarding the
debt." 2008 FCC Order at 564 ¶ 9. The consumer has given consent only "if the
wireless number was provided by the consumer to the creditor, and [ ] such number was
provided during the transaction that resulted in the debt owed." Id. at 564–65.
Transworld argues that Goggans consented to receiving calls about her Pacific
Beach account by providing her cell phone number on the patient registration form she
completed during her appointment. The Court agrees. Goggans admits that she
provided Pacific Beach with her cell phone number twice, once in the patient information
section and once in the responsible party section. See Pls.' Resp. to Def.'s ASUMF ¶¶
11–12; Pls.' Opp'n at 6. And courts have typically found that providing a phone number
to a medical provider constitutes consent to receive calls at that number regarding the
medical debt. See, e.g., Mitchem v. Ill. Collection Serv., Inc., 2012 WL 170968, at *2
(N.D. Ill. Jan. 20, 2012). Goggans provided her phone number to Pacific Beach during
a transaction (an appointment for medical services) that resulted in an alleged debt
(payment owed for those services). Thus no reasonable factfinder could infer that
Goggans did not consent to receiving calls from Transworld regarding payment for
these services.
Goggans argues that providing her cell phone number did not constitute consent
because the transaction did not create any debt. She contends that she paid in full at
the time of her appointment and therefore did not owe Pacific Beach any money. Thus,
according to Goggans, she did not provide her phone number "during the transaction

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that resulted in the debt owed," because there is no debt owed. But Goggans does not
point to any case law indicating that a defendant in a TCPA case asserting a defense
based on consent is required to prove that the plaintiff was in fact liable for the debt.
Transworld has provided evidence that it received Goggans' account from Pacific
Beach; Pacific Beach indicated that she owed money on her account; and Pacific Beach
provided her cell phone number as the only means of contact. This is sufficient to
establish that Goggans provided her cell phone number during the transaction that
resulted in the debt owed; no reasonable fact finder could find otherwise.
Further, Goggans has not provided any evidence that she paid for her medical
services in their entirety. She does not provide a receipt from Pacific Beach or records
from her own finances indicating the amount due for the services or the amount she
paid on that date. Goggans points to the language of the patient registration form,
which indicates that if the patient does not provide insurance information, she must pay
in full at the time of the appointment. Because she did not provide any insurance
information, Goggans argues, she must have paid in full. The Court finds that—in the
context of a consent defense to a TCPA claim—this is insufficient to contradict
Transworld's evidence that Goggans had an outstanding balance on her account.
Goggans has not provided evidence that reflects that there is a genuine dispute on
whether she paid in full for her medical services. In sum, no reasonable factfinder could
infer that Goggans did not provide her phone number during the transaction giving rise
to the debt at issue.
Goggans next argues that even if she consented to receiving phone calls, the
scope of the consent extends only to calls about treatment and not to calls about

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payment. Pls.' Opp'n at 6–7. Courts have held that prior express consent is limited in
scope to the purpose for which it was granted. See Zeidel, 2015 WL 1910456, at *3;
Van Patten, 847 F.3d at 1046; see also In the Matter of Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991 (2012 FCC Order), 27 F.C.C.R.
1830, 1849 ¶ 25 (2012) ("Consumers who provide a wireless phone number for a
limited purpose—for service calls only—do not necessarily expect to receive
telemarketing calls that go beyond the limited purpose for which oral consent regarding
service calls may have been granted.").
The Court finds, however, that no reasonable factfinder could infer that Goggans
did not consent to receiving calls about payment for her treatment. She provided her
cell phone number to her medical provider in order to receive and pay for services. She
later received phone calls from Transworld regarding an outstanding balance on this
account. These phone calls clearly come within the limited purpose for which Goggans
provided her phone number to Pacific Beach. Compare Dolemba v. Kelly Servs., Inc.,
No. 16 C 4971, 2017 WL 429572, at *4 (N.D. Ill. Jan. 31, 2017) (finding that calls were
within the scope of plaintiff's consent where she gave defendant her phone number
when expressing interest in positions using office skills and defendant later called her
regarding a position as a machine operator); Van Patten, 847 F.3d at 1046 (finding that
text messages were within the scope of plaintiff's consent where he gave defendant his
cell phone number when signing up for gym membership and defendant sent text
messages inviting plaintiff to "come back" and reactivate his gym membership); with
Kolinek v. Walgreen Co., No. 13 C 4806, 2014 WL 3056813, at *4 (N.D. Ill. July 7, 2014)
(Kennelly, J.) (finding that calls were not within the scope of plaintiff's consent where he

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gave defendant his phone number after being told it was needed for identity verification
and defendant later used it to make prescription refill reminder calls).
The Court therefore concludes that Goggans consented to receiving phone calls
regarding payment for her medical services from Pacific Beach.
B.

Revocation of consent

Transworld next argues that Goggans never revoked her consent. The FCC has
indicated that a consumer has the right to revoke consent if she no longer wishes to
receive calls or texts. In the Matter of Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991 (2015 FCC Order), 30 F.C.C.R. 7961, 7993–94 ¶ 56
(2015). A consumer may revoke consent by any reasonable method. Id. at 7996 ¶ 64.
Transworld alleges that the only time any of its representatives spoke with
Goggans was a phone call on May 28, 2015, during which she clearly did not revoke
consent. But Goggans has provided evidence sufficient to show a genuine dispute
regarding whether she revoked consent before the May 2015 phone call. First,
Goggans testified during her deposition that she repeatedly answered phone calls from
Transworld prior to this date and told the company to stop calling her. In rebuttal,
Transworld points to statements by Goggans that she believed these phone calls were
attempts to collect payment on her student loan debt and argues that therefore
Goggans' testimony is insufficient to give rise to a genuine dispute. See Def.'s Reply at
8. But the fact that Goggans may have mistaken the reason behind Transworld's phone
calls would not prevent a reasonable factfinder from concluding that she answered a
phone call from Transworld and instructed them to stop calling her.
Transworld also argues that its records reflect that it never spoke with Goggans

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prior to May 2015 and that all other calls it made before this date were disconnected
before Goggans reached a representative. Klein Decl. ¶ 15. But Klein, Transworld's
declarant, did not participate in any of the conversations, and Goggans has offered
evidence from which a reasonable factfinder could conclude that Klein is mistaken.
Goggans provides her cell phone records from AT&T, which indicate that she received
several phone calls from different phone numbers, each with a 619 area code, between
August 2013 and May 2015. Pls.' Resp. to Def.'s ASUMF, Ex. A (AT&T Records).
According to Goggans, each of these calls was from Transworld, showing that she
spoke with them multiple times prior to May 2015. She argues that the fact that the
company's records do not reflect these phone calls indicates that its records are
unreliable and do not support a conclusion that she did not revoke consent. Transworld
points out that many of these calls indicate an elapsed time of 0:00, meaning that the
company likely never connected with Goggans. See, e.g., id. at 191. But the records
also show at least four phone calls which lasted some length of time, during which it is
plausible that Goggans, as she says, told Transworld to stop calling her. See id. at 208
(call on 9/13/13 lasting 0:35), 408 (call on 7/14/14 lasting 0:24), 456 (call on 9/17/14
lasting 0:20), 500 (call on 12/5/14 lasting 0:07). In sum, a reasonable factfinder could
conclude that Goggans revoked her prior express consent. The Court therefore denies
Transworld's motion for summary judgment on counts 1 and 2 as brought by Goggans.
II.

Class allegations
Transworld also requests that the Court strike the class allegations from the

second amended complaint. Transworld argues that the issue of consent is specific to
Goggans and not an issue common to the class and therefore that plaintiffs cannot

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meet the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). The
Court declines to strike the class allegations at this stage in the proceedings. First,
plaintiffs have not filed a motion for class certification and therefore ruling on issues
such as predominance would be premature. Second, the second amended complaint
includes two additional plaintiffs—French and Cahill—whom plaintiffs contend will also
represent the TCPA class. Thus even if Goggans faces an individualized consent
defense on her TCPA claim, this would not prevent the other two plaintiffs from
representing this class. The Court therefore denies Transworld's request to strike the
class allegations.
Conclusion
For the foregoing reasons, the Court denies Transworld's motion for partial
summary judgment [dkt. no. 62] and denies its request to strike the class allegations.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: April 12, 2017

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