IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GERARDO ARANDA, GRANT )

BIRCHMEIER, STEPHEN PARKES, and )

REGINA STONE, on behalf of themselves )

and classes of others similarly situated, )

)

Plaintiffs, )

)

vs. ) Case No. 12 C 4069

)

CARIBBEAN CRUISE LINE, INC., )

ECONOMIC STRATEGY GROUP, )

ECONOMIC STRATEGY GROUP, INC., )

ECONOMIC STRATEGY, LLC, THE )

BERKLEY GROUP, INC., and VACATION )

OWNERSHIP MARKETING TOURS, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Gerardo Aranda, Grant Birchmeier, Stephen Parkes, and Regina Stone filed suit 

on behalf of themselves and similarly situated individuals against Caribbean Cruise 

Line, Inc. (CCL), Vacation Ownership Marketing Tours, Inc. (VOMT), The Berkley 

Group, Inc., and Economic Strategy Group and its affiliated entities (collectively ESG). 

Plaintiffs alleged that defendants violated the Telephone Consumer Protection Act, 47 

U.S.C. § 227, by using an autodialer and an artificial or prerecorded voice to call their 

cellular and landline phones. According to plaintiffs, ESG placed millions of calls to 

consumers who did not consent to receive them. The nominal purpose of the calls was 

to conduct public opinion surveys, but plaintiffs alleged that the calls were in fact 
2

telemarketing calls designed to sell vacation products at the direction and on behalf of 

CCL, VOMT, and Berkley.

Plaintiffs moved to certify two classes, one consisting of consumers who received 

calls to their cellular telephones and the other consisting of consumers who received 

calls to their residential landlines. In opposition to plaintiffs' motion to certify, defendants 

argued (among other things) that the proposed classes lacked commonality under Rule 

23(a) and that Rule 23(b)(3) prohibited certification because individual issues would 

predominate over common ones. Specifically, defendants argued that plaintiffs' claimed 

injuries and their associated damages varied widely: some plaintiffs would be able to 

show they received a call and ascertained that it was one of the allegedly unlawful calls, 

but others would not be able to demonstrate they received a call at all, and still others 

would be able to show they received a call but did not hear its contents.

In August 2014, the Court certified two classes of persons who allegedly received 

calls featuring prerecorded messages from ESG between August 2011 and August 

2012. Individuals in the first class, represented by Aranda, Parkes, Stone, and 

Birchmeier, allegedly received calls on their cellular telephones. Individuals in the 

second class, represented by Stone alone, allegedly received calls on their residential 

landlines. Each class was defined as follows:

All persons in the United States to whom (1) one or more telephone calls 

were made by, on behalf, or for the benefit of the Defendants, (2) 

purportedly offering a free cruise in exchange for taking an automated 

public opinion and / or political survey, (3) which delivered a message 

using a prerecorded or artificial voice; (4) between August 2011 and 

August 2012, (5) whose (i) telephone number appears in Defendants' 

records of those calls and / or the records of their third party telephone 

carriers or the third party telephone carriers of their call centers or (ii) own 

records prove that they received the calls—such as their telephone 

records, bills, and / or recordings of the calls—and who submit an affidavit 
3

or claim form if necessary to describe the content of the call.

Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 256 (N.D. Ill. 2014).

In granting plaintiffs' motion for class certification, the Court disagreed that the 

proposed classes lacked commonality because they "by definition received the same 

calls offering a free cruise in exchange for a political or public opinion survey, made by 

or for one of the defendants, using the same artificial or prerecorded voice technology. 

This is a common alleged injury presenting a common question." Id. at 251. The Court 

explained that plaintiffs were alleging "a common injury, resulting from receipt of the 

allegedly offending calls, not to mention common questions regarding the liability of the 

defendants who did not themselves place the calls." Id. The Court also rejected the 

argument that individual issues would predominate over common ones. It explained:

As noted earlier, the common question among class members is whether 

they received calls fitting the description in the class definitions. These 

definitions do not leave much room for variation and are undoubtedly 

common to each class member: offer of a free cruise, offer made in 

exchange for participation in a political or public opinion survey; use of a 

prerecorded or artificial voice; date of call; by, on behalf of, or for the 

benefit of defendants. Defendants have not shown that any of these 

elements will be subject to variation among those described in the 

proposed class definitions. To put it another way, whether a particular 

defendant is liable is not an individual issue among class members. . . . 

Furthermore, defendants' contention about calculation of individual 

damages is a non-issue in terms of predominance. Plaintiffs are asking 

only for statutory damages, which eliminates individual variations.

Id. 

Defendants sought permission from the court of appeals to appeal the class 

certification order under Federal Rule of Civil Procedure 23(f). The court of appeals 

denied defendants' request. See In re Caribbean Cruise Line, Inc., No. 14-8021 (7th 

Cir. Oct. 10, 2014).
4

In April 2016, the Court granted partial summary judgment for the plaintiffs, 

finding that they had established that the calls that the plaintiffs in the cell phone class 

received from ESG violated the TCPA. See Aranda v. Caribbean Cruise Line, Inc., No. 

12 C 4069, 2016 WL 1555576, at *4–7 (N.D. Ill. Apr. 18, 2016). The Court granted 

partial summary judgment because the evidence showed the calls were made using a 

prerecorded voice, the recording was played on every call without regard to whether the 

recipient gave a voice response, no plaintiff gave prior express consent to be called, 

and no statutory or regulatory exemption applied. The Court's ruling did not determine 

which defendants were responsible for the TCPA violation. That issue remains for trial.

The Court denied plaintiffs' motion seeking a determination of defendants' TCPA 

liability for the landline calls. The Court determined that were a jury to conclude that the 

calls were made exclusively by and for ESG (a tax-exempt non-profit organization) for a 

non-commercial purpose, FCC regulations would exempt the calls from liability. Id. at 

*9. The Court also denied defendants' motions for summary judgment, finding that 

disputes of material fact persisted regarding the purpose of the calls and the 

relationships between and among the defendants.

In May 2016, the Supreme Court decided Spokeo, Inc. v. Robins, 136 S. Ct. 

1540 (2016). In Spokeo, the Court vacated and remanded a Ninth Circuit decision 

finding that a plaintiff asserted a concrete and particularized injury sufficient to confer 

constitutional standing where he sued based on a defendant's violation of a consumer 

protection statute. Defendants, relying on Spokeo, have renewed their motion for 

summary judgment and have moved to decertify the classes.
5

Discussion

"Article III of the Constitution limits federal judicial power to certain 'cases' and 

'controversies,' and the 'irreducible constitutional minimum' of standing contains three 

elements." Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (quoting Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 559–60 (1992)). The first of these three elements is that the 

plaintiff must have suffered an "'injury in fact' that is (a) concrete and particularized and 

(b) actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). The injury must also 

be "fairly traceable to the challenged action of the defendant" and redressable through 

judicial action. Id.

In Spokeo, the Supreme Court considered a case in which a plaintiff brought suit 

to enforce the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681e(b), a consumer 

protection statute intended to ensure "fair and accurate credit reporting," id. 

§ 1681(a)(1). The defendant, Spokeo Inc., was alleged to be a consumer reporting 

agency that operated a website through which users could search for information about 

a person by inputting that person's name, e-mail address, or telephone number. In 

response to an online inquiry, Spokeo would search its databases and provide 

information to the searcher about the search subject, such as his or her address, 

telephone number, marital status, age, occupation, finances, and education. The 

plaintiff, Thomas Robins, sued Spokeo when he learned that the company incorrectly 

reported that he was married with children, in his fifties, gainfully employed, affluent, 

and highly educated. This, Robins claimed, violated the FCRA, which provides that 

consumer reporting agencies must "follow reasonable procedures to assure maximum 
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possible accuracy" of consumer reports. 15 U.S.C. § 1681e(b).

The district court dismissed Robins's complaint for lack of subject matter 

jurisdiction based on the absence of an injury-in-fact sufficient to confer constitutional 

standing under Article III, but the Ninth Circuit reversed. The court first observed that 

under Ninth Circuit precedent, "the violation of a statutory right is usually a sufficient 

injury in fact to confer standing." Robins v. Spokeo, Inc., 742 F.3d 409, 412 (9th Cir. 

2014). It then found that Robins had standing to sue because his asserted injury was 

concrete and particularized, traceable to Spokeo's conduct, and redressable through 

litigation. Specifically, the appellate court found that Robins's injury was sufficiently 

concrete and particularized because he alleged that Spokeo "violated his statutory 

rights, not just the statutory rights of other people," and his personal interests in the 

handling of his credit information [were] individualized rather than collective." Id. at 413.

The Supreme Court disapproved of the Ninth Circuit's reasoning. It explained

that "concreteness" and "particularization" are distinct concepts and that both most exist 

for a plaintiff to have standing. The Court observed that the two reasons the Ninth 

Circuit gave for finding Robins had suffered an injury-in-fact—that his, not just other 

people's, rights were violated, and that his interests in the handling of his credit 

information were individualized—demonstrated only that the harm he alleged was 

particularized. They did not, however, demonstrate that his injury was concrete. The 

Court explained that "[a] 'concrete' injury must be 'de facto'; that is, it must actually exist. 

When we have used the adjective 'concrete,' we have meant to convey the usual 

meaning of the term—'real,' and not 'abstract.'" Spokeo, 136 S. Ct. at 1548. Because 

the Ninth Circuit did not consider the extent to which Robins alleged more than a "bare 
7

procedural violation," id. at 1549, the Court vacated the appellate court's judgment and 

remanded the case for further proceedings.

Defendants argue that Spokeo clarified that an injury must be both "concrete" 

and "particularized" to satisfy Article III and that the bare violation of a consumer 

protection statute does not amount to a "concrete" injury. They contend that plaintiffs 

have alleged only that defendants violated the TCPA, not that the defendants caused

any concrete harm as a result of their statutory violation. As support for this contention, 

defendants point out that plaintiffs seek only statutory damages and not actual 

damages. 

Defendants also argue that even if some plaintiffs did suffer concrete and 

particularized harm, the classes should be decertified because many other plaintiffs did 

not. For example, many plaintiffs incurred no charges related to the calls they received. 

Included among that large group are plaintiffs who did not personally answer the calls

they received, plaintiffs who answered calls and were not irritated or annoyed by them, 

and plaintiffs who, according to defendants, benefited from the calls by staying on the 

line and accepting the defendants' vacation product offer. Defendants argue that 

determination of whether and to what extent these plaintiffs were injured requires a 

plaintiff-by-plaintiff inquiry that undermines the commonality of the classes and 

predominates over common issues, in contravention of Rules 23(a) and 23(b)(3).

Spokeo was not the first case to set forth that an injury must be both concrete 

and particularized to suffice as an injury-in-fact for the purposes of constitutional 

standing. (That said, it may have been the first case in which the Court opined on the 

distinction between the two concepts. See Spokeo, 136 S. Ct. at 1555 (Ginsburg, J., 
8

dissenting) ("The Court's opinion observes that time and again, our decisions have 

coupled the words 'concrete and particularized.' True, but true too, in the four cases 

cited by the Court, and many others, opinions do not discuss the separate offices of the 

terms 'concrete' and 'particularized.'") (internal citations omitted)). Indeed, concreteness 

and particularity have been the twin pillars of a justiciable injury-in-fact for at least forty 

years. See, e.g., Duke Power Co. v. Car. Envtl. Study Grp., Inc., 438 U.S. 59, 80 

(1978) ("Where a party champions his own rights, and where the injury alleged is a 

concrete and particularized one which will be prevented or redressed by the relief 

requested, the basic practical and prudential concerns underlying the standing doctrine 

are generally satisfied when the constitutional requisites are met."). The Court in 

Spokeo also explained that a plaintiff cannot "allege a bare procedural violation, 

divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." 

Spokeo, 136 S. Ct. at 1549. But this too was well-settled law. See, e.g., Summers v. 

Earth Island Inst., 555 U.S. 488, 496 (2009); Lujan, 504 U.S. at 572.

More importantly, the Court did not find that Robins's asserted injury was not 

concrete. Rather, the Court simply observed that the Ninth Circuit failed to consider the 

question adequately. The Supreme Court did not reverse the Ninth Circuit outright; 

instead, it vacated the appellate court's judgment and remanded the case so the court 

could more carefully examine whether Robins's asserted harms were concrete.

The Supreme Court in Spokeo did, however, set forth a blueprint for evaluating

whether an alleged injury is sufficiently concrete to qualify for purposes of the standing 

inquiry. The Court implied that tangible harms are generally sufficient to constitute a 

concrete injury, but a justiciable case or controversy can still exist even when the harms 
9

the plaintiff alleges are intangible. It cautioned courts that "concrete" is not a synonym 

for "tangible," for "we have confirmed in many of our previous cases that intangible 

injuries can nevertheless be concrete." Spokeo, 136 S. Ct. at 1549 (citing Pleasant 

Grove City v. Summum, 555 U.S. 460 (2009), and Church of Lukumi Bablu Aye, Inc. v. 

Hialeah, 508 U.S. 520 (1993)). 

To identify whether an intangible injury is concrete, "both history and the 

judgment of Congress play important roles." Spokeo, 136 S. Ct. at 1549. The Court 

observed that because the case-or-controversy requirement at the heart of the standing 

inquiry "is grounded in historical practice, it is instructive to consider whether an alleged 

intangible harm has a close relationship to a harm that has traditionally been regarded 

as providing a basis for a lawsuit in English or American courts." Id. at 1549 (citing Vt. 

Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 775–77 (2000)). 

The Court also encouraged courts to defer to some extent to Congress's judgment,

"because Congress is well positioned to identify intangible harms that meet minimum 

Article III requirements." Spokeo, 136 S. Ct. at 1549. This is why the Court has 

recognized Congress's power to "elevate to the status of legally cognizable injuries 

concrete, de facto injuries that were previously inadequate at law" and to "define injuries 

and articulate chains of causation that will give rise to a case or controversy where none 

existed before." Id. (internal citations and quotation marks omitted). But, the Court

cautioned, "Congress' role in identifying and elevating intangible harms does not mean 

that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute 

grants a person a statutory right and purports to authorize that person to sue to 

vindicate that right." Id. 
10

As defendants point out, a handful of district courts have, since Spokeo,

conducted this analysis in similar cases and determined that plaintiffs like Robins lack 

standing to sue because they do not allege concrete injuries. For example, in Smith v. 

Ohio State University, plaintiffs applying to work for the defendant alleged that the 

defendant requested consent to pull their credit reports during the hiring process, 

providing a disclosure and authorization that included extraneous information. See 

Smith v. Ohio State Univ., No. 2:15 C 3030, 2016 WL 3182675, at *1 (S.D. Ohio June 8, 

2016). Plaintiffs sued the defendant under the FCRA, which provides that "a person 

may not procure a consumer report, or cause a consumer report to be procured, for 

employment purposes with respect to any consumer unless . . . the consumer has 

authorized in writing . . . the procurement of the report by that person." 15 U.S.C. 

§ 1681b(b)(2)(A)(ii). The court found that the plaintiffs lacked standing to sue because 

they had not identified a concrete and particularized injury-in-fact. It noted the Supreme 

Court's observation in Spokeo that "[a] violation of one of the FCRA's procedural 

requirements may result in no harm," Spokeo, 136 S. Ct. at 1540, and it found that this 

was precisely what had occurred, because the plaintiffs "admitted that they did not 

suffer a concrete consequential damage as a result of OSU's alleged breach of the 

FCRA." Smith, 2016 WL 3182675, at *4.

Likewise, in Gubala v. Time Warner Cable, Inc., another district court found that 

a plaintiff failed to allege a concrete injury where his suit was based on the defendant's 

failure to abide by the Cable Communications Policy Act, 47 U.S.C. § 551(e), which 

required it to destroy records containing his personal information. See Gubala v. Time 

Warner Cable, Inc., No. 15 C 1078, 2016 WL 3390415, at *1 (E.D. Wis. June 17, 2016). 
11

In Khan v. Children's National Health System, plaintiffs alleged violations of the

Maryland Consumer Protection Act and the District of Columbia Consumer Protection 

Procedures Act, along with claims of negligence, breach of implied contract, and unjust 

enrichment under state law, contending that the defendant's alleged failure to "take 

sufficient steps to protect [the plaintiffs' sensitive personal information] through 

encryption, passwords, or other measures" led to a data breach that left this information 

exposed. Khan v. Children's Nat'l Health Sys., No. TDC-15-2125, 2016 WL 2946165, at 

*1 (D. Md. May 19, 2016). The plaintiffs "[did] not claim that [they] or anyone else 

affected by the data breach [had] learned of any misuse" of their personal data, id., but 

they claimed they were injured nonetheless because "the violations of state statutes and 

common law alleged in the Complaint establish[ed] standing," id. at *7. The court found 

that this was a bare procedural violation, and that because the plaintiffs "failed to 

connect the alleged statutory and common law violations to a concrete harm," the 

plaintiffs lacked standing to sue. Id.

Like the statute allegedly violated in Spokeo, the statutes at issue in each of 

these cases imposed record-keeping and procedural obligations on the defendants. 

The Supreme Court noted in Spokeo that "the violation of a procedural right granted by 

statute can be sufficient in some circumstances to constitute injury in fact. In other 

words, a plaintiff in such a case need not allege any additional harm beyond the one 

Congress has identified." Spokeo, 136 S. Ct. at 1549 (citing Fed. Election Comm'n v. 

Akins, 524 U.S. 11, 20–25 (1998), and Public Citizen v. Dep't of Justice, 491 U.S. 440, 

449 (1989)). But in other circumstances, a plaintiff would need to show more than the 

mere violation of a procedural right. Section 1681e(b) of the FCRA, the Court 
12

explained, was in the latter group of cases. "[N]ot all inaccuracies cause harm or 

present any material risk of harm. An example that comes readily to mind is an 

incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip 

code, without more, could work any concrete harm." Spokeo, 136 S. Ct. at 1550.

The Supreme Court's point in Spokeo was not that a statutory violation cannot 

constitute a concrete injury, but rather that where the bare violation of a statute 

conferring a procedural right could cause a congressionally identified harm or material 

risk of harm and just as easily could not, it is not sufficient simply to allege that the 

statute at issue was violated. Failure to ensure the accuracy of a consumer report may 

result in a harm or material risk of harm the FCRA was intended to curb—loss of 

employment opportunities, for example, or a decrease in the consumer's 

creditworthiness. But it may also fail to cause any harm or material risk of harm at all. 

Put differently, the procedural rights imposed through section 1681e(b) are attenuated 

enough from the interests Congress identified and sought to protect through the FCRA 

that charging a defendant with violating them is not necessarily the same as charging 

the defendant with causing a congressionally-identified concrete injury that gives rise to 

standing to sue.

The same cannot be said of the TCPA claims asserted in this case. Unlike the 

statute at issue in Spokeo (and those at issue in Smith, Gubala, and Khan), the TCPA 

section at issue does not require the adoption of procedures to decrease 

congressionally-identified risks. Rather, section 227 of the TCPA prohibits making 

certain kinds of telephonic contact with consumers without first obtaining their consent. 

It directly forbids activities that by their nature infringe the privacy-related interests that 
13

Congress sought to protect by enacting the TCPA. There is no gap—there are not 

some kinds of violations of section 227 that do not result in the harm Congress intended 

to curb, namely, the receipt of unsolicited telemarketing calls that by their nature invade 

the privacy and disturb the solitude of their recipients. 

In any event, section 227 establishes substantive, not procedural, rights to be 

free from telemarketing calls consumers have not consented to receive. Both history 

and the judgment of Congress suggest that violation of this substantive right is sufficient 

to constitute a concrete, de facto injury. As other courts have observed, American and 

English courts have long heard cases in which plaintiffs alleged that defendants 

affirmatively directed their conduct at plaintiffs to invade their privacy and disturb their 

solitude. See, e.g., Mey v. Got Warranty, Inc., No. 5:15 C 101, 2016 WL 3645195, at *3 

(N.D.W.V. June 30, 2016) ("[T]he TCPA can be seen as merely liberalizing and 

codifying the application of [a] common law tort to a particularly intrusive type of 

unwanted telephone call."); Caudill v. Wells Fargo Home Mort., Inc., No. 5:16-066-DCR, 

2016 WL 3820195, at *2 (E.D. Ky. July 11, 2016) ("[The] alleged harms, such as 

invasion of privacy, have traditionally been regarded as providing a basis for a lawsuit in 

the United States."). And Congress enacted the TCPA to protect consumers from the 

annoyance, irritation, and unwanted nuisance of telemarketing phone calls, granting 

protection to consumers' identifiable concrete interests in preserving their rights to 

privacy and seclusion. 

Defendants cite a recent decision by a judge in the Central District of California 

who found no concrete injury where the named plaintiff alleged she received an 

unsolicited sales call from the defendant using an autodialer or artificial or prerecorded 
14

voice in violation of section 227. See Smith v. Aitima Med. Equip., Inc., No. ED CV 16-

00339-AB (DTBx), slip op. at 6 (C.D. Cal. July 29, 2016). There, the court found that 

the mere violation of section 227 did not constitute a concrete injury and that any 

conceivable tangible and intangible harms associated with the call were too insignificant 

to rise to the level of a justiciable injury-in-fact. Id. at 5–6.

The Court respectfully disagrees with the reasoning of the judge in Aitima 

Medical Equipment. In contrast to statutes that impose obligations regarding how one 

manages data, keeps records, or verifies information, section 227 of the TCPA directly 

prohibits a person from taking actions directed at consumers who will be actively 

touched by that person's conduct. It does not matter whether plaintiffs lack additional 

tangible harms like loss of cell phone battery life, actual annoyance, and financial 

losses; Congress has identified that such unsolicited telephonic contact constitutes an 

intangible, concrete harm, and plaintiffs have alleged such concrete harms that they, 

themselves suffered. Their injuries are concrete and particularized, traceable to 

defendants' conduct, and judicially redressable. For these reasons, the Court overrules 

defendants' argument for summary judgment based on plaintiffs' purported lack of 

standing.

The same reasoning also explains why defendants' argument for decertification 

cannot carry the day. Defendants insist that because a mere statutory violation does 

not equate to a concrete harm sufficient to establish an injury in fact, the only plaintiffs 

with standing to sue would be those who suffered additional harm beyond the mere 

violation of their statutory rights—namely, plaintiffs who claim to have incurred monetary 

costs from the calls they received and plaintiffs who were in fact irritated or annoyed by 
15

the calls. Accordingly, defendants argue that whether and to what extent each plaintiff 

was injured is a question that must be answered individually for each plaintiff. 

This argument fails for two reasons. First, all of the plaintiffs in the two certified 

classes have alleged a common, concrete injury. As explained above, the intangible, 

concrete injury plaintiffs allege is that defendants violated a right Congress sought to 

protect through section 227: the right to be free from prerecorded non-emergency 

telemarketing calls they did not consent to receive. This concrete injury is alleged to 

have been suffered by every plaintiff—even plaintiffs who completed the survey, spoke 

with a CCL representative, and accepted defendants' vacation offer had a right to be 

free from unsolicited telemarketing calls, just as a homeowner has a right to be free 

from trespass even if she accepts a gift from the trespasser after he commits the 

offense. The key common question is whether defendants made unlawful calls to 

plaintiffs using a prerecorded voice without consent to make them; plaintiffs win if the 

answer to this question is yes, and defendants win if the answer is no. The classes 

therefore meet the commonality requirement imposed under Rule 23(a).

Second, given plaintiffs' choice to seek only statutory damages, common issues 

very clearly continue to predominate over individual ones. Defendants may be right that 

some plaintiffs were more irritated by the calls than others and some experienced 

monetary losses while others did not. But plaintiffs seek redress only for the single, 

common injury inflicted by violating their rights to be free from unsolicited telemarketing 

calls. To determine whether such an injury occurred, a jury need not determine the 

degree to which each plaintiff was annoyed, the amount of battery life or prepaid 

minutes each plaintiff lost, or the charges each plaintiff incurred for the calls.
16

Foregoing their right to seek actual damages based on their injuries has no effect 

on plaintiffs' standing to sue, for, as another court in this district recently noted, 

"[w]hether a case is within a court's power to adjudicate does not turn on the potential 

offsets to the alleged injury." Johnson v. Yahoo!, Inc., No. 14 C 2028, Tr. of Rec. at 

7:12–14 (N.D. Ill. July 25, 2016). But the fact that plaintiffs seek only statutory damages

does affect whether their injuries must be determined on an individual basis. Because 

plaintiffs seek only the set statutory amount, factors that might affect the gravity of any 

variegated actual losses plaintiffs may have suffered are irrelevant. Thus the classes, 

as certified, continue to satisfy Rule 23(b)(3)'s predominance requirement.

Conclusion

For the foregoing reasons, the Court denies defendants' motions to decertify the 

classes [dkt. no. 428] and for summary judgment [dkt. no. 434].

________________________________

MATTHEW F. KENNELLY

 United States District Judge

Date: August 23, 2016