District Court (Ill.) Takes a Run at Explaining Soppett and “Called Party”/”Subscriber”

In Jamison v. First Credit Services, Inc., 2013 WL 3872171 (Bkrtcy.N.D.Ill. 2013), Judge Kendall denied a TCPA-class action plaintiff’s motion for reconsideration of the Court’s denial of class certification because the Plaintiff was a convicted felon.  This case involved an alleged violation of the TCPA whereby FCS, on behalf of Honda, allegedly called Jamison’s cellular telephone multiple times without Jamison’s consent in an effort to collect a debt owed to Honda by Jamison’s sister. FCS obtained the cellular telephone number by running a “skip-trace” on Jamison’s sister.  After the parties completed briefing the motion, this Court denied the motion for class certification on March 28, 2013. The Court denied the motion, in part, because the Plaintiff’s felony conviction for access device fraud rendered him inadequate to serve as the class representative under Federal Rule of Civil Procedure 23(a)(4).  Plaintiff moved to reconsider.  In ruling the motion, the District Court was required to explain why a TCPA Plaintiff’s credibility would be at issue and, in doing so, took run at the Seventh Circuit’s decision in Soppett.

However, there was also no misapprehension by the Court. The Court noted that Jamison’s credibility issues were heightened because there was an open question as to whether Jamison or his mother paid the bill for the cellphone that was allegedly called and determining whether Jamison suffered any monetary loss as result of the alleged conduct will be an issue at trial. The Court found that these issues could further impact Jamison’s credibility because the “[t]he jury could reasonably conclude that Jamison is a convicted fraudster who is seeking a windfall in litigation despite the fact that he never suffered any monetary loss.” Order at 23. In his motion, Jamison contends that these issues are irrelevant and would not undermine his credibility with the jury. However, this misses the point. The recent fraud conviction is admissible and would severely undermine Jamison’s credibility with the jury. See, e.g., Schleicher, 2009 WL 1561438, at *3. Moreover, while the Court does not need to rule definitively here, these factual disputes are relevant because Jamison will need to establish that he was the subscriber of the wireless number that FCS called in order to establish a valid claim under the TCPA. . . . ¶   It is axiomatic that the person or entity who has a TCPA claim is the “called party.” FN4 Thus, to begin with Jamison will need to establish that he was called. The fact that the cellphone may belong to his mother and not him is relevant to this threshold question. His felony fraud conviction cuts against him here alone.  [FN4. The Court notes that other district courts have found that a plaintiff does not need to be the “called party” in order to assert a “cellular” claim under the TCPA. See, e.g., D.G. v. William W. Siegel & Associates, 791 F.Supp.2d 622, 625 (N.D.Ill.2011); Nelson v. Santander Consumer USA, Inc., No. 11 C 307, 2013 WL 1141009, at *5–6 (W.D.Wis. Mar. 8, 2013). However, these holdings appear to be the result of a semantic distinction with this Court. Those courts did not hold that anyone could assert a claim for a violation of the TCPA; rather, they held that the plaintiff did not need to be the “called party” as defined by the defendants in those cases. In both cases, the plaintiffs were the actual recipients of the calls. This Court, however, disagrees with Nelson that Soppet’s definition of “called party” is limited to who can give express consent and should not be used for determining who possesses a claim under the TCPA. Soppet analyzed the use of the term throughout the statute and specifically invoked the Supreme Court’s presumption that a statute uses a single phrase consistently in arriving at its result that a “called party” is a subscriber. Therefore, as described below, this Court believes that the wireless number’s subscriber is one who possesses a claim under the TCPA.] ¶  However, assuming FCS called a cellphone Jamison possessed, there is still a legal question of who is the “called party?” Is it the owner of the cellphone in question who is charged for the call? Or is it simply the recipient of the call? Generally, with respect to the cellphone, the question is redundant because people do not answer other people’s wireless phones. See Soppet v. Enhanced Recovery, Co., LLC, 679 F.3d 637, 640 (7th Cir.2012) (“For cell service, the subscriber and the person who answers almost always are the same, given the norm that one person does not answer another’s cell phone.”). However, a number of district courts, including courts within this district, have concluded that the “called party” is not necessarily the party who is charged for the call but is instead the recipient of the call. See, e.g., Strickler v. Bijora, Inc., No. 11 C 3468, 2012 WL 5386089, at *3 (N.D.Ill. Oct. 30, 2012); Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1009–10 (N.D.Ill.2010); Abbas v. Selling Source, LLC, No. 09 C 3413, 2009 WL 4884471, at *3 (N.D.Ill.Dec. 14, 2009); See Manno v. Healthcare Revenue Recovery Group, LLC, No. 11 C 61357, 2013 WL 1283881, at *4–5 (S.D.Fla. Mar. 26, 2013). The underlying rationale for this conclusion is that the purpose of the TCPA was not only to prevent unwanted expenses but also to prevent an invasion of privacy. ¶  However, this Court believes that the Seventh Circuit would limit the right of action to the wireless number’s “subscriber” because, while not dealing with this question explicitly, the Court defined the term “called party” to mean “the person subscribing to the called number at the time the call is made.” See Soppet, 679 F .3d at 643.FN5 It is unlikely that it would use a different definition for the same term in the same part of the statute. See id. at 639–40 (citing Mohasco Corp. v. Silver, 447 U.S. 807 (1980)) (“The presumption [is] that a statute uses a single phrase consistently …”). Therefore, in order to recover, Jamison will need to prove that he was the current subscriber of the wireless number that was called.  [FN5. The courts in this district that have concluded any recipient has a cause of action under the TCPA appear to have been decided before Soppet or did not consider the import of Soppet. However, the recent case from the Southern District of Florida relied on by Jamison, Manno v. Healthcare, supports this Court’s analysis. There, the Court was asked to consider whether the “called party,” i.e., the claim holder, was the “subscriber” or “regular user and carrier of the phone.” See Manno, 2013 WL 1283881, at *4–5. It concluded the latter but noted the distinction between the terms.]  ¶  While Soppet did not explicitly adopt a definition for subscriber, its language suggests that the subscriber is the person who pays the bill. First, the Court defined “called party” in 227(b)(1)(A)(iii) to “mean Cell Number’s current subscriber, because only the current subscriber pays.” Id. at 639. Subsequently it noted that the current subscriber “is the person who pays the bills or needs the line in order to receive other calls .” Therefore, under Soppet, Jamison’s monetary loss, or lack thereof, is relevant because it goes to show whether or not he is the subscriber of the wireless number called by FCS. Even if Soppet separately defined a person who “needs the line in order to receive other calls” as a distinct category of subscriber from the payor, Jamison’s lack of monetary loss is still relevant and admissible to prove that Jamison’s mother and not Jamison was the subscriber of wireless phone in issue. Thus, while the recent felony fraud conviction is sufficient by itself to render Jamison inadequate as class representative, the fraud conviction combined with the relevant lack of loss could be especially damaging.