Individualized Issues Defeat Class Certification in Illinois

TCPA Connect

A Telephone Consumer Protection Act (TCPA) defendant was able to overcome the plaintiff’s attempt to certify a nationwide class by demonstrating the need for individualized analysis in a decision from an Illinois federal court.

Rico Tillman’s mother, Judy Sanders, rented a car from Hertz Rent-A-Car and failed to return it as promised. While many facts remained in dispute—from the type of rental agreement Sanders signed, whether that agreement contained language permitting Hertz to call any telephone number listed by the renter and for what purposes the phone numbers provided by Sanders were to be used—the parties did not disagree that Sanders gave Hertz Tillman’s number as well as her own.

When the car was not returned on time, Hertz began calling both numbers provided by Sanders and continued calling until she returned the rental car.

Tillman filed a putative class action against the car rental company. He claimed that the calls were robocalls prohibited by the TCPA and that he asked Hertz to stop calling his number and remove it from the company’s database but that it failed to do so.

Hertz moved for summary judgment and the court denied the motion, finding that Tillman’s revocation of the consent allegedly given by Sanders was reasonable. However, U.S. District Court Judge Robert W. Gettleman cautioned the plaintiff that class certification in the suit was “highly unlikely … due to the obvious predominance of individual facts concerning consent and revocation thereof.”

In response, Tillman filed an amended complaint that revised the definition of the putative class as “All noncustomers whose cellphone Hertz or some other vendor on its behalf called on or after April 12, 2012, using a prerecorded voice and/or dialing equipment of the type used to call plaintiff, where such call was placed after a request to stop calling that number.” He then filed a motion to certify the class.

The court was not persuaded that the updated class definition solved the individualized issues it had earlier identified and denied class certification.

“Numerous contested facts peculiar to this case destroy any notion of adequacy and typicality,” which must be satisfied under Federal Rule of Civil Procedure (F.R.C.P.) 23(a), Judge Gettleman wrote. “Those contested facts include the type of contract executed by Sanders (and thus the type of consent she gave), the type of calls defendant made to [Tillman’s] number (whether they used a prerecorded voice or instead were live calls to determine where the car rented by Sanders was and to avoid having to report it as stolen), and whether and how plaintiff ‘revoked’ the consent given by his mother (which was conceded by defendant only for purposes of the motion for summary judgment).”

These “hotly contested” facts raised unique defenses peculiar to the plaintiff’s case, making him an atypical and inadequate class representative, the court concluded.

He further failed to satisfy the requirements of F.R.C.P. 23(b), the court said.

“The lack of predominance of common questions of fact is yet another reason to grant defendant’s motion,” the court wrote. “The putative class includes all noncustomers that defendant called ‘after a request to stop calling [the noncustomer’s] phone number.’ Whether a ‘request to stop calling’ was made is a question of fact that will need to be litigated with respect to each member of the class.”

Therefore, common questions of fact would not predominate over individual ones, the court said, with “the necessity of conducting mini-trials for each class member” destroying Tillman’s argument that a class action was superior to other available methods for resolving the case.

To read the opinion and order in Tillman v. The Hertz Corporation, click here.

Why it matters: The Illinois court wasted little ink denying the plaintiff’s motion for class certification, finding that he failed to satisfy the requirements of both Rule 23(a) and Rule 23(b) of the F.R.C.P. Not only did “numerous” contested facts specific to the case remain in dispute, the court found an overall lack of predominance of common questions defeated the motion for certification.