Abdallah v. FedEx Corporation
Filing
205
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/16/2021. Mailed notice(mjc, )
Case: 1:16-cv-03967 Document #: 205 Filed: 03/16/21 Page 1 of 15 PageID #:2371
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Najeh Abdallah,
Plaintiff,
v.
FedEx Corporate Services, Inc., et al.,
Defendants.
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Case No.: 16-cv-3967
Honorable Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiff Najeh Abdallah (“Abdallah”) brought this case as a class action under the
Telephone Consumer Protection Act of 1991, as amended (“TCPA”), 47 U.S.C. § 227.
Following the conclusion of merits discovery in 2019, this court partially denied defendants’
motion for summary judgment, finding that genuine disputes of material fact exist on Abdallah’s
claim that defendants violated the TCPA by placing hundreds of “trace calls” to his cell number
even though his number was listed on the national do-not-call registry. 2019 WL 4464305,
at *5-10 (N.D. Ill. Sept. 18, 2019). Defendant FedEx Corporate Services, Inc. (“FedEx”), or a
contractor providing call center services, places a “trace call” to the shipper when something is
preventing the delivery of a package shipped internationally. Id. at *1 (citation omitted). Two
FedEx contractors, C3/CustomerContactChannels, Inc. (“C3”), and Harte Hanks, Inc., are codefendants here. Id.
Before the court is Abdallah’s motion for class certification under Rule 23 of the Federal
Rules of Civil Procedure. Defendants have also filed two motions to strike certain exhibits
Abdallah submitted in support of his motion for class certification.1 Because Abdallah has not
1
All three defendants join the opposition to class certification. ECF No. 182 at 27. However, the proposed class
definitions involve calls placed by two of three defendants, FedEx Corporate Services, Inc. (FedEx), and
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satisfied Rule 23’s typicality and numerosity requirements, the court denies his motion for class
certification. See Fed. R. Civ. P. 23(a)(1), (3).
I. Background
A. Relevant TCPA Provisions
Congress passed the TCPA in response to numerous consumer complaints about the
abusive and intrusive use of telephone technologies by telemarketers and others. See Barr v. Am.
Ass'n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2343–44 (2020); Mims v. Arrow Fin. Servs.,
LLC, 565 U.S. 368, 369 (2012). The TCPA allows “[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” governing the national do-not-call list to bring a private lawsuit and recover actual
or statutory damages. 47 U.S.C. § 227(c)(5).
The parties’ arguments here implicate several provisions of the regulations governing the
national do-not-call registry.2 First, the regulations prohibit any “person or entity” from
“initiat[ing] any telephone solicitation” to a number on the national do-not-call registry. 47
C.F.R. § 64.1200(c)(2) (West effective Oct. 16, 2013 to Feb. 11, 2018); see id. § 64.1200(e)
(extending protections to a wireless telephone number). The term “telephone solicitation” is
defined to mean “the initiation of a telephone call or message for the purpose of encouraging the
purchase or rental of, or investment in, property, goods, or services.” Id. § 64.1200(f)(15). The
definition of “telephone solicitation" has three exceptions. Under the regulations, a call or
message does not qualify as a telephone solicitation if it is (i) “[t]o any person with that person's
C3/CustomerContactChannels, Inc. (“C3”). Mem. Supp. Mot. Class Certification 2-3, ECF No. 165. For clarity, the
court refers to all three defendants collectively in this opinion.
Effective March 29, 2021, an amendment to 47 C.F.R. § 64.1200(a)(9)(i) creates a safe harbor for certain “[c]alls
made by a package delivery company to notify a consumer about a package delivery.” See 86 Fed. Reg. 11443,
11447 (Feb. 25, 2021).
2
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prior express invitation or permission;” (ii) “[t]o any person with whom the caller has an
established business relationship;” or (iii) “[b]y or on behalf of a tax-exempt nonprofit
organization.” Id.; see also 47 U.S.C. § 227(a)(4).
B. The 2019 Summary Judgment Opinion
Following discovery on the merits of Abdallah’s individual claim, defendants moved for
summary judgment.3 ECF No. 95. This court denied summary judgment in part on
September 18, 2019. 2019 WL 4464305.
At summary judgment, the fact “that one of the purposes of the trace calls Abdallah
received was to get the package delivered to its intended destination” was undisputed. Id. at *6
(citation omitted). This court determined that a reasonable jury viewing the evidence in the light
most favorable to plaintiff could “find that the trace calls were ‘dual purpose’ calls advertising or
soliciting return shipping services.” Id. at *10. The court identified three categories of
genuinely disputed material facts: (1) whether defendants incentivize trace agents to persuade
customers to purchase return shipping services; (2) whether defendants train trace agents
indirectly to encourage customers to purchase return shipping services; and (3) whether the trace
calls provide purchasers with more than a collateral opportunity to purchase shipping services.
Id. at *7-10. The parties did not raise the issues of whether Abdallah consented to receive the
calls and whether he had a prior business relationship with FedEx. See id. at *5.
C. Class Certification Discovery
By agreement, the parties conducted approximately eight months of class certification
discovery after this court partially denied defendants’ motion for summary judgment. See, e.g.,
Min. Entry, Oct. 31, 2019, ECF No. 127 (setting initial schedule); Min. Entry, Mar. 17, 2020,
3
The 2019 summary judgment opinion summarizes the procedural history in detail. See 2019 WL 4464305, at *1–
3.
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ECF No. 150 (setting expert discovery deadlines and briefing schedule). Abdallah then filed his
pending motion for class certification, and defendants filed their motions to strike certain
exhibits to the motion for class certification.
The record contains uncontested evidence pertinent to the class certification analysis.
During class certification discovery, which was supervised by the designated magistrate judge,
Abdallah’s attorney and counsel for defendants agreed to the production of a limited sample of
outbound call log data. Decl. of E. Turin ¶ 17, ECF No. 165-7 (Pl.’s Ex. G). FedEx produced
call logs for a 60-day period between October 21 and December 21, 2019.4 Id.; Decl. of
J. Campbell ¶ 7, ECF No. 182-6 (Defs.’ Ex. F; noting that the production was subject to certain
objections by FedEx).
Some background on FedEx’s customer service practices and data management frames
the agreed discovery. According to undisputed evidence in the record, FedEx maintains
information about outbound calls in several places. First, FedEx keeps logs of all outbound
customer service calls. See Decl. of E. Neal ¶¶ 4–5, ECF No. 182-5 (Defs.’ Ex. E). These logs
capture all numbers dialed and the date and time of all customer service calls placed by FedEx.
Id. ¶ 5. The logs do not differentiate between the trace calls at issue here and other customer
service calls. See id.
FedEx separately utilizes a “customer interaction platform” database called OneSource.
Id. ¶ 6. A new “case” is created in OneSource for every new customer interaction, including
trace calls. Id. ¶¶ 6-8. OneSource cases are also created for a variety of other reasons, such as
when a customer calls FedEx’s toll-free customer service number. See id. ¶¶ 6-8. Customer
4
C3 produced call logs for the period of December 2015 to May 2016. Turin Decl. ¶ 17. Plaintiff followed up on
FedEx’s production but apparently did not follow up on C3’s production. See id. ¶¶ 17-19.
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service agents must document all outbound calls in OneSource, and each case has a case notes
field for documenting the conversation. See id. ¶ 9.
Case data reside in OneSource until they are archived in FedEx's Enterprise Data
Warehouse ("EDW"). See Couture Decl. ¶¶ 3-4. Archival occurs either when the case is closed
or after 60 days have elapsed. Id. ¶ 4. Data are transferred to keep OneSource from becoming
bogged down processing archival information. See id. ¶ 3. There is a factual dispute about
whether case notes stored in EDW can be searched efficiently and reliably in order to identify
trace calls and calls placed to the wrong number, but the court does not weigh into that dispute
today.
Under the agreed class certification discovery protocol, FedEx produced call logs for a
60-day period. Turin Decl. ¶ 17. FedEx produced a list of 131,441 phone numbers called during
the 60-day sample period. Campbell Decl. ¶ 7. Abdallah’s counsel eventually contacted
FedEx’s counsel and advised that his expert had identified 5,940 phone numbers on the national
do-not-call registry that had received more than one phone call in a 30-day period. Id. ¶ 8. The
parties agreed to the production of OneSource data corresponding to a sample of 150 of those
numbers.5 Id. FedEx searched OneSource for associated cases and case notes. See Neal Decl.
¶¶ 15-16. The search netted 3,424 case notes. Campbell Decl. ¶ 11. Defendants’ counsel then
reviewed the notes for responsiveness. See id. ¶¶ 12-14. Defendants excluded calls they deemed
to be obviously nonresponsive, such as “case notes for calls solely to package recipients, internal
5
Although the court does not reach defendants' motions to strike Verkhovskaya 's (plaintiff expert) declaration, the
court notes that she characterizes the sample of call notes as not statistically significant. Decl. of A. Verkhovskaya
¶ 9, ECF No. 165-16 (Pl.’s Ex. P). Abdallah does not explain why he agreed to rely on evidence his own expert
believes is not sufficiently representative of the proposed class and subclass. This further weakens the persuasive
weight of much of Abdallah's evidence. Nothing in this opinion should be understood as implying that the data
produced during class discovery constitute a statistically significant sample of calls to proposed class and subclass
members.
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calls between or among FedEx offices or employees, and calls with only interactions that did not
involve the status of shipments, as these calls would not potentially give rise to a return shipment
or discussion about return shipment options. This process was also designed to exclude nontrace calls.” Id. ¶ 13. Following this review, FedEx produced a spreadsheet listing 2,354
responsive case notes. Id. ¶ 15. The parties base their class certification arguments on this
production and their respective analyses of it.
II. Analysis
As the party seeking class certification, Abdallah bears the burden to prove by a
preponderance of the evidence that the four requirements of Rule 23(a)–numerosity,
commonality, typicality, and adequacy of representation—and the requirements for at least one
of the three categories under Rule 23(b) are satisfied. Orr v. Shicker, 953 F.3d 490, 497 (7th
Cir. 2020). The court must conduct a rigorous analysis of Rule 23(a)'s requirements. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011). Defendants contest every component of the
Rule 23 analysis and raise an additional procedural objection to Abdallah’s alteration of the class
definition proposed in his second amended complaint. See generally Resp. to Mot. Class
Certification, ECF No. 182. “Failure to meet any of [Rule 23(a) or (b)] requirements preclude
class certification.” Orr, 953 F.3d at 497 (citing Arreola v. Godinez, 546 F.3d 788, 794 (7th
Cir. 2008)). The Rule 23(a) requirements of numerosity, typicality, and adequacy suffice to
resolve Abdallah’s motion for class certification.
A. Proposed Class Definitions
Abdallah proposes to certify the following class and a single subclass defined as:
The Class: All persons in the United States who received at least two trace calls
placed by FedEx or C3 on their cellular telephone in any 12-month period since
July 1, 2015 and which were received more than 31 days after the recipient’s
telephone number was registered on the National Do-Not Call Registry.
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The Subclass: All persons in the United States who received at least two trace calls
placed by FedEx or C3 on their cellular telephone in any 12-month period since
July 1, 2015 and which were received more than 31 days after the recipient’s
telephone number was registered on the National Do-Not Call Registry and who
were not a FedEx customer.
Mem. Supp. Mot. Class Certification 2-3, ECF No. 165.
The parties refer to the proposed subclass as a “wrong number” subclass. E.g., id. at 14.
Abdallah explains that the subclass’s defining characteristic is that all of the calls to subclass
members were erroneously placed to the wrong person. Reply 9, ECF No. 187. Abdallah never
explains exactly why he believes the subclass is necessary. See id. Regardless, the proposed
class and subclass must “satisf[y] the requirements for certifying a class, so that each could be
the plaintiff class in a separate class action.” Johnson v. Meriter Health Servs. Emp. Ret. Plan,
702 F.3d 364, 368 (7th Cir. 2012).
B. Motions to Strike
Defendants separately move to strike three exhibits, in part or in whole, to Abdallah’s
motion for class certification. ECF Nos. 180, 181. Defendants primarily challenge the
admissibility of the expert report of Anya Verkhovskaya (“Verkhoyskaya”) under Rule 702 of
the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579
(1993). ECF No. 181. The defendants contend in their second motion to strike that portions of
the Verkhovskaya declaration and the declaration of one of Abdallah’s lawyers, Eugene Y. Turin
(“Turin”), contain inadmissible hearsay from Verkhovskaya not disclosed in her report or at her
deposition. ECF No. 180.
The court must resolve material factual disputes when deciding a motion for class
certification. Priddy v. Health Care Serv. Corp., 870 F.3d 657, 660 (7th Cir. 2017) (citing
Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)). And “whenever
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an expert's report or testimony is critical to a class certification decision, a district court must rule
conclusively on a challenge to the expert's qualifications or opinions before ruling on class
certification, without regard to whether the district court ultimately grants or denies that motion.”
Messner, 669 F.3d at 813 (citing Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th
Cir. 2010)). Conversely, “a Daubert hearing is unnecessary when certification is denied on
grounds not addressed by the expert in dispute.” Id. at 814 (explaining that the court need not
rule on a Daubert challenge “if the court decides the motion for class certification on grounds not
addressed by the witness”).
Here, defendant’s motions to strike implicate no facts critical to the dispositive class
certification analysis.6 Nor does the court need to resolve disputed facts. As explained below,
defendants’ numerosity, typicality, and adequacy challenges can be resolved based on
undisputed evidence submitted by both sides.7 See, e.g., Doe v. City of Harvey,
2014 WL 4724381, at *4 (N.D. Ill. Sept. 22, 2014); Seary v. eFunds Corp., 2010 WL 183362,
at *9 (N.D. Ill. Jan. 20, 2010), on reconsideration sub nom. Searcy v. eFunds Corp.,
2010 WL 1337684 (N.D. Ill. Mar. 31, 2010).
C. Numerosity
To satisfy the numerosity requirement, plaintiff must show that the proposed class “is so
numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Abdallah cites
nonbinding statements in district court cases to the effect that he need only provide a good faith
estimate of the class’s size. He also argues that he must present only “concrete evidence that
Were the court to reach other class certification issues, Verkhovskaya’s opinions would be critical. Verkhovskaya
opines that it is possible, common, and administratively feasible to identify and send notice to members of the
proposed class and subclass using the methodology she proposes. See ECF No. 176 at 3-4 (Pl.’s Ex. J under seal;
summarizing opinions).
6
7
The Seventh Circuit has instructed courts harboring doubts about whether a Daubert challenge is critical to resolve
the Daubert issue. Messner, 669 F.3d at 812. This court harbors no such doubts here.
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goes beyond speculation” satisfying the numerosity requirement. Reply 6 (citing Sadowski v.
Med1 Online, LLC, 2008 WL 2224892 (N.D. Ill. May 27, 2008)).
Following the completion of briefing on the pending motions, the Seventh Circuit
clarified in Anderson v. Weinert Enterprises, Inc., 986 F.3d 773, 777 (7th Cir. 2021), that a
proponent of class certification “bears the burden of proving by a preponderance of evidence that
his proposed class is sufficiently numerous.” (citing Chi. Tchrs. Union, Local No. 1 v. Bd. of
Educ. of Chi., 797 F.3d 426, 433 (7th Cir. 2015)). The Seventh Circuit described the
Rule 23(a)(1) numerosity requirement as follows:
Our cases have recognized that “a forty-member class is often regarded as sufficient
to meet the numerosity requirement.” Orr, 953 F.3d at 498 (quoting Mulvania v.
Sheriff of Rock Island Cnty., 850 F.3d 849, 859 (7th Cir. 2017)). But a class of 40
or more does not guarantee numerosity. See Pruitt v. City of Chi., 472 F.3d 925,
926 (7th Cir. 2006) (recognizing that “[s]ometimes ‘even’ 40 plaintiffs would be
unmanageable”).
The key numerosity inquiry under Rule 23(a)(1) is not the number of class members
alone but the practicability of joinder. Answering that question requires evaluation
of “the nature of the action, the size of the individual claims, and the location of the
members of the class or the property that is the subject matter of the dispute.”
7A C. Wright & A. Miller, Federal Practice & Procedure § 1762 (3d ed. 2020).
Anderson, 986 F.3d at 777.
Regarding the subclass of calls to the wrong phone number, Abdallah concedes that
“defendants are correct that Plaintiff did not identify any Subclass members from the limited data
set of One Source [sic] case notes Plaintiff received.” Reply 7. This is true even if the court
were to consider the evidence that is the subject of defendants’ motions to strike. See id.
In addition to Abdallah’s concession that he has produced no evidence of other “wrong
number” trace calls, uncontested evidence in the record raises a legitimate doubt that any other
members of the subclass exist. Specifically, defendants provide new details about the database
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glitch that resulted in Abdallah’s receipt of hundreds of trace calls.8 A FedEx “Technical
Principal” explains that Abdallah called FedEx’s customer service phone number to inquire
about a package he had shipped to Jordan. Couture Decl. ¶¶ 2, 12. Because Abdallah did not
give his name when he called, his contact information became associated in FedEx’s OneSource
system with the code “NFN NLN” (“no first name, no last name”). Id. ¶ 12. “For a period after
that, any case that was created with the code ‘NFN NLN’ was assigned Mr. Abdallah’s phone
number as a secondary number.” Id. ¶ 13. The error resulted in Abdallah’s phone number being
incorrectly populated as the secondary number for more than one thousand other customers
before FedEx identified and corrected the problem several months later. See id. ¶¶ 13-14.
FedEx knows of no other instance in which the same database glitch occurred, id. ¶ 15, and
Abdallah points to no evidence that what happened to Abdallah has recurred.
Abdallah nevertheless urges the court to draw the inference that a sufficiently large group
of subclass members exists to make joinder impracticable based on (1) the fact that defendants
have implemented specific policies for tracking calls placed to an incorrect number; (2) the fact
that the sample shows that multiple people were called in error when defendants were making
other customer service calls (but not the trace calls at issue here); and (3) “the vast scope of
defendants’ trace call operation.” Reply 7 (citations omitted). In some circumstances, drawing
inferences like those Abdallah proposes may be warranted, for “[t]he [numerosity] inquiry is fact
and circumstance dependent.” Compare Anderson, 986 F.3d at 778 (reviewing for abuse of
discretion and affirming denial of class certification), with Orr, 953 F.3d at 498 (no abuse of
discretion despite “gaps” in proof that made evidence “barely” sufficient to support inference
that proposed class of prisoners satisfied numerosity requirements).
These details were not provided at summary judgment. See Defs.’ Joint LR 56.1 Statement of Material Facts, ¶ 19,
ECF No. 97.
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The court cannot infer here that a sufficiently numerous subclass exists. Abdallah had
the opportunity to conduct nearly nine months of class certification discovery following
summary judgment. He agreed to a method for sampling call data to support his class
certification motion, but the sampling method yielded no evidence that any other “wrong
number” calls were made to members of the proposed subclass. See Turin Decl.¶ 17; Reply 7.
Even assuming for the sake of argument that unidentified subclass members exist, how could the
court determine how many there are? One additional class member would not be enough, but
one hundred might. See Anderson, 986 F.3d at 778 (declining to draw bright lines on the number
of class members needed to meet the numerosity requirement). The point is that the court must
speculate about how many, if any, additional members of the proposed subclass there are. Given
all of these circumstances and in view of the uncontested evidence casting doubt on whether any
other subclass members exist, Abdallah must do more than speculate about the subclass’s size to
carry his burden to prove that joinder of all subclass members is not feasible. See Anderson, 986
F.3d at 778 (citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)) (holding
that it was reasonable to require the plaintiff to “do more than speculate” about the number of
class members).
However, undisputed evidence submitted by defendants supports a finding that the
proposed class, but not the subclass, satisfies Rule 23(a)(1)’s test of numerosity. After
defendants produced their initial sample of calls during discovery, Turin, plaintiff’s attorney,
requested case notes on calls to 150 numbers that his expert had been identified as potentially
satisfying the proposed class definition. See Campbell Decl. ¶ 8. FedEx identified 3,424 case
notes associated with trace calls to those 150 phone numbers. Id. ¶ 11; see also Neal Decl. ¶ 16.
FedEx’s legal professionals then reviewed those case notes for relevance and responsiveness and
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ultimately produced a list of 2,414 case notes which “involved calls to other than package
shippers and which did not involve the status of a package.” See Campbell Decl. ¶¶ 13-16.
Defendants maintain that an unspecified number of these records do not even arguably
meet the class definition. Id. ¶¶ 15-17. Nevertheless, defendants produced more than two thirds
of the case notes they initially identified as potentially responsive. See id. ¶¶ 11, 15. However, it
is reasonable to infer, given the large number of records for these 150 numbers, that the entire
class, which again covers a greater time period, is large enough to make joinder infeasible.
D. Typicality and Adequacy
The parties analyze typicality and adequacy together. Under Rule 23(a)(3), “the claims
or defenses of the representative parties [must be] typical of the claims or defenses of the class.”
Typicality can exist “even if there are factual distinctions between the claims of the named
plaintiffs and those of other class members.” Physicians Healthsource, Inc. v. A-S Medication
Sols., LLC, 318 F.R.D. 712, 723 (N.D. Ill. 2016) (citing Muro v. Target Corp., 580 F.3d 485, 492
(7th Cir. 2009)). “Typicality ensures that class representatives have an ‘incentive to litigate
vigorously’ the claims of the absent class members.” Howard v. Cook Cnty. Sheriff’s Off.,
___ F.3d ___, 2021 WL 822744, at *13 (7th Cir. Mar. 4, 2021) (citing Muro, 580 F.3d at 493).
There must be “enough congruence between the named representative's claim and that of the
unnamed members of the class to justify allowing the named party to litigate on behalf of the
group.” Orr, 953 F.3d at 500 (citing Spano v. Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011)).
Hence the Seventh Circuit has held in a TCPA class action that "[t]he presence of even an
arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may
destroy the required typicality of the class as well as bring into question the adequacy of the
named plaintiff's representation." CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d
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721, 726 (7th Cir. 2011) (citing J. H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d 994,
999 (7th Cir. 1980)).
The adequacy of representation requirement focuses on whether “the representative
parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “A
class representative must be part of the class and must ‘possess the same interest and suffer the
same injury’ as the other class members.” Orr, 953 F.3d at 499 (citing Wal-Mart, 564 U.S. at
348).
The numerosity problem with Abdallah’s proposed subclass foreshadows the typicality
problem, but here the problem affects the class as a whole. Cf. Culver v. City of Milwaukee,
277 F.3d 908, 911-12 (7th Cir. 2002) (explaining that the plaintiff’s inability to serve as
representative of one of two proposed subclasses demonstrated that his claim was not typical of
the class as a whole). “Seventh Circuit precedent [] teaches that commonality and typicality are
generally met where . . . a defendant engages in a standardized course of conduct vis-a-vis the
class members, and plaintiffs' alleged injury arises out of that conduct.” Physicians
Healthsource, 318 F.R.D. at 723 (citing Hinman v. M & M Rental Ctr., Inc., 545 F. Supp. 2d
802, 806–07 (N.D. Ill. 2008)) (certifying class in TCPA “junk fax” case; brackets in original).
Abdallah attempts to define the common course of conduct broadly as the placing of trace
calls, but as explained above, uncontroverted evidence in the record establishes that Abdallah’s
receipt of hundreds of trace calls resulted from a unique problem with FedEx’s OneSource
database. See Couture Decl. ¶¶ 12-15. Abdallah has produced no evidence, and does not argue,
that any other person ever received calls as the result of a similar problem. See id. ¶ 15;
Reply 7–8.
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On this record, the unique circumstances that gave rise to Abdallah’s receipt of unwanted
trace calls makes his legal and factual arguments markedly different from those of the class. One
of the allegedly common issues for class resolution is whether class members had a prior
business relationship with FedEx.9 Yet Abdallah advances arguments unique to him that he
effectively terminated any business relationship he had with FedEx when he began receiving
trace calls from FedEx. See Reply 7–8. Specifically, Abdallah points to his verbal requests that
the trace calls be stopped, a letter he later wrote to FedEx asking for the calls to stop, and the
filing of this lawsuit. See id. Abdallah points to no other evidence, and does not suggest, that
any other class members did any of these things or similarly took steps arguably terminating
whatever business relationship they had with FedEx. See id. Thus, Abdallah intends to pursue
arguments for establishing defendants’ liability unavailable to other class members on this
record. That makes his claims atypical under Rule 23(a)(3) because he lacks an adequate
incentive to pursue the interests of absent class members.10 See Howard, 2021 WL 822744,
at *13; CE Design, 637 F.3d at 727-28; Muro, 580 F.3d at 492.
Thus, Abdallah has failed to carry his burden to submit enough evidence to find that his
claims, which appear to result from a one-time database glitch, are adequately comparable with
those of the absentee class members. See Orr, 953 F.3d at 500 (reversing class certification).
The plaintiff lists five allegedly common issues: (1) whether the trace calls were “telephone solicitations;” (2) the
existence of valid consent; (3) whether the established business relationship exemption applies; (4) defendants’
liability under the TCPA; and (5) damages. Mem. Supp. Mot. Class Certification 17-21.
9
10
At summary judgment on the merits, plaintiff did not pursue a resolution of the alleged common issues of consent
and the existence of a prior business relationship. See Abdallah, 2019 WL 4464305, at *5. He has not explained
this omission. In the absence of an explanation, Abdallah's failure to pursue the allegedly common issues further
suggests that he lacks an adequate incentive to do so.
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III. Conclusion
For the reasons stated, plaintiff’s motion for class certification is denied. It is denied as
to the subclass on numerosity grounds. It is denied as to the class as a whole on typicality
grounds. Defendants’ motions to strike certain exhibits to the motion for class certification are
denied as moot.
Dated: March 16, 2021
/s/
Joan B. Gottschall
United States District Judge
15
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