Earlier this month, the Northern District of Illinois struck the class allegations in Cholly v. Uptain Group, Inc., a single-count TCPA case filed against a medical services provider and a debt collector based on allegedly autodialed calls the plaintiff received. The defendants had sought to dismiss the complaint on several grounds, but had also filed a motion to strike the plaintiff’s class allegations. Although the court denied the defendants’ efforts to dismiss the case, it granted the motion to strike. The court’s analysis in its opinion striking the class allegations may prove a useful guide for defendants in other TCPA actions as they map out their own litigation strategies.
In Cholly, the plaintiff incurred a debt to a medical services provider, who later hired a third-party debt collector. The plaintiff alleged that the debt collector called her cell phone using an automatic telephone dialing system (ATDS). Although she had initially consented to calls, the plaintiff alleged that she had later revoked her consent. On these facts, the plaintiff sought to represent two classes: one class of individuals who had never provided consent at all, and a second class of those who had originally provided consent, but had later revoked it.
Defendants tried to dismiss the case on several grounds, arguing that the plaintiff lacked standing under Spokeo v. Robins and that the plaintiff’s claims (if any existed) were the property of her estate in bankruptcy. The court rejected these arguments. But the defendants separately moved to strike the plaintiff’s class allegations, arguing that the plaintiff could not represent the first class because she was not a member of that class, and that the second class was not viable because the individualized issues associated with determining who had first provided consent then revoked it were unsuitable for class treatment. The court agreed, noting a line of cases rejecting certification of revocation classes and explaining “the individual inquiries necessary to determine class membership will ‘inevitably predominate’ over any common questions of fact.” Cholly v. Uptain Group, Inc., No. 15-cv-05030 (N.D. Ill.) Memo. Op. and Order dated Feb. 1, 2017 (Dkt. No. 149).
Generally, certification issues arise later in the life of a case than they did in Cholly, and some courts may not entertain early motions to strike class allegations. Nevertheless, after considering the relevant case law and rules as well as the allegations they are facing, TCPA defendants might consider whether seeking to strike class allegations could be strategically beneficial.