District Court (Ill.) Certifies TCPA Class; Says Class Definition Does Not Need to Include “Use of an ATDS” but Does Need to Include “Without Prior Express Consent”

In Zeidel v. A&M (2015) LLC, 2017 WL 1178150, at *6 (N.D.Ill., 2017), Judge Dow certified a TCPA class, but modified the plaintiff’s class definition.

Plaintiff responds that the express written consent language provides an “objective criteria” and is an easy metric for identifying proper class members. [121, at 5–6.] Plaintiff also notes that some courts have certified classes that include consent-related language in the class definition. Id. at 7 (citing Green, 2009 WL 1810769, at *4, and G.M. Sign, Inc. v. Grp. C Commc’ns, Inc., 2010 WL 744262, at *6 (N.D. Ill. Feb. 25, 2010)). However, Plaintiff offers that the class definition could be “rephrased” to avoid any concerns raised by Defendant’s objection so that the last clause reads “on their cellular telephones from the shortcode 24587 after October 16, 2013, other than any individual who provided his/her name and phone number to Defendant through Defendant’s website, or by sending a text message to Defendant, or the 489 individuals who provided such information on the written in-store forms attached as Exhibit O to Plaintiff’s Motion for Class Certification.” [121, at 7.] Plaintiff also believes that “any reasonable variation” of this language would suffice.  The Court agrees that the class definition should be modified along the lines of Plaintiff’s proposal. Plaintiff seemingly uses the “without providing prior express written consent” language as a proxy for excluding certain text message recipients from the class based on how their phone number ended up in Defendant’s customer database, not as a means to screen out class members against whom Defendant will have a valid affirmative defense. [105, at 4.] The latter purpose would raise ascertainability concerns. See Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *8 (N.D. Ill. Oct. 14, 2016) (holding that plaintiff proposed an impermissible fail-safe TCPA class where class membership required “a determination of consent—i.e., whether the called party’s number was ‘volunteered’ or ‘verified’ before [Defendant] used it”); Mauer v. Am. Intercontinental Univ., Inc., 2016 WL 4698665, at *3 (N.D. Ill. Sept. 8, 2016) (holding that defining a class to include people who “did not previously provide express written consent to be contacted” was a fail-safe class (collecting cases)). Fail-safe problems “can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis.” Messner, 669 F.3d at 825. The proper way to exclude people from the class is to address that exclusion directly in the class definition, rather than indirectly and with criteria that speak to which party will prevail on this liability issue.