IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

KOFI JAMISON, individually and on ) 

behalf of the class defined below, ) 

 ) 

 Plaintiff, ) Case No. 12-cv-4415 

 v. ) 

 ) Judge Virginia M. Kendall 

FIRST CREDIT SERVICES, INC. d.b.a. ) 

ACCOUNTS RECEIVABLE ) Magistrate Geraldine Soat Brown 

TECHNOLOGIES, et al., ) 

 ) 

 Defendants. ) 

 

RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO CERTIFY 

Defendant FIRST CREDIT SERVICES, INC. (“FCS”) submits the following Response 

in opposition to Plaintiff’s Motion for Class Certification: 

I. INTRODUCTION 

 Plaintiff asserts that FCS called his cell phone in violation of the Telephone Consumer 

Protection Act (“TCPA”), 47 U.S.C. §227, which prohibits making calls to a number assigned to 

a cell phone using an “automatic telephone dialing system or an artificial or prerecorded voice” 

without the consent of the called party. 47 U.S.C. §227(b)(1)(A)(iii). 

 “[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable,” 

General Tel. Co. v. Falcon, 457 U.S. 147, 160-61 (1982). Notwithstanding this well recognized 

principle, Plaintiff’s pro forma Memorandum In Support Of Motion For Class Certification (dkt. 

52) (“Memo”) glosses over the factors necessary to establish a properly certified class. FCS 

contacted customers of American Honda Finance Corp. (“Honda”) to try to collect debts owed to 

Honda. A large portion of the calls were placed to numbers that were provided to Honda by the 

subject customers. 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 1 of 16 PageID #:1091
 Plaintiff’s Motion should be denied because whether putative class members consented is 

an individualized issue of fact which predominates over any questions common to the class 

members. If putative class members consented to FCS’s calls by giving their numbers to Honda 

or FCS, those calls would not violate the TCPA. However, in order to determine whether 

consent exists, the parties will be required to review every collection note, audio recording, and 

correspondence and depose each potential class member. 

 The class definition is also flawed. It requires that putative class members were called on 

a cell phone as a result of skip traces. Identifying the people called during a skip trace raises 

additional individual inquiries and will not result in ascertaining most of the putative class. 

Unlike the “White Pages,” which identifies the names of residential phone subscribers who may 

have been called, there is no similar database to identify the cellular subscribers called. There 

are also various technical issues discussed below that make it impossible to identify these 

putative class members. Using plaintiff’s definition, it is highly unlikely that a person similar to 

plaintiff would ever be identified. During a skip trace, plaintiff was called on his cell phone in 

error and did not report his contact information to FCS when he informed FCS it was calling the 

wrong number. His identity was only ascertained because he was contacted by Plaintiff’s 

counsel after his telephone number was disclosed in an earlier TCPA case. There are countless 

unidentifiable putative class members under this definition. 

II. ARGUMENT 

Class actions are “the exception to the usual rule” that cases are conducted on behalf of 

individual named parties. Falcon, 457 U.S. at 155 (internal quotation omitted). Plaintiff bears 

the burden of showing that the requirements of Rule 23 are satisfied. Amchem Products, Inc. v. 

- 2 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 2 of 16 PageID #:1092
Windsor, 521 U.S. 591, 614 (1997). This Court is obliged to undertake a rigorous analysis to 

determine whether the required elements have been met. Falcon, 457 U.S. at 160-61. 

For the sake of judicial economy, FCS adopts Honda’s arguments in opposition to 

Plaintiff’s Motion to Certify and sets forth the following additional arguments 

A. Certification is Premature in Light of Pending FCC Proceedings 

 Plaintiff has alleged that FCS violated the TCPA by calling him “automatic telephone 

dialing system” without his consent. 47 U.S.C. §227(b)(1)(A)(iii). The TCPA defines the term 

“automatic telephone dialing system” as “equipment which has the capacity— (A) to store or 

produce telephone numbers to be called, using a random or sequential number generator; and 

(B) to dial such numbers.” § 227(a)(1)(A)-(B). The FCS has disputed that it called Plaintiff 

with “automatic telephone dialing system” and has moved to stay this case while the Federal 

Communication Commission determines whether a “predictive dialer” (the type of device used 

by FCS) is prohibited by the TCPA. See Motion to Stay, Dkt. nos. 42, 46 & 53. If the FCC 

holds that a “predictive dialer” is not an “automatic telephone dialing system”, then Plaintiff will 

have no case under this aspect of the TCPA. Given the pending FCC proceeding, the best course 

of action would entail staying this case until such time as the FCC rules. 

B. Plaintiff’s Authorities Are Not On Point 

The vast majority of the cases Plaintiff cites are “junk fax” cases where the defendants 

purchased third-party telemarketing lists from third-parties and sent unsolicited fax 

advertisements to class members, despite the fact that the defendant had no prior business 

relationship with the class members. Dkt. 52, p. 9. In contrast, FCS was attempting to call 

persons who owed money to Honda, and as discussed below, at least 40% of the numbers FCS 

called as a result of skip traces were actually provided to Honda by the subject debtors. 

- 3 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 3 of 16 PageID #:1093
Plaintiff cites to only three TCPA cases from the Northern District of Illinois which 

involved calls to cell phones: Pesce v. First Credit Services, 11 C 1379, Balbarin v. North Star 

Capital and Mitchem v. Illinois Collection Services. All three are distinguishable or even 

demonstrate why the proposed class in this case cannot be certified. In Pesce, Judge Gettleman 

decertified the class, holding that an individualized issue of fact existed with regard to whether 

the plaintiff and other members of the putative class had consented to being called by providing 

their cell phone numbers to the creditors. Pesce, 11 C 1379, Dkt. 126 (June 6, 2012 

decertification order,) (Exhibit A). According to Judge Gettleman: 

The class certified was too broad because it included as class members persons 

who received a non-emergency telephone call from defendant to a cellular 

telephone through the use of an automatic telephone dialing system or artificial or 

prerecorded voice when the original creditors’ records show that the person 

provided the cell phone number to the creditor but defendant’s records do not. 

Accordingly, the court decertifies the class certified on December 19, 2011 in 

Docket No. 71. In light of the file-by-file analysis which must be conducted as to 

the existence of consent, class certification should be denied. 

Exhibit A, pp. 1-2. 

The class definition in this action is significantly different than the one in Mitchem. The 

Mitchem case involved the collection of medical debts. The medical providers obtained the cell 

phone numbers of the patients and later forwarded those numbers to the defendant debt collector. 

The collector called the numbers and was sued. The theory of the case was that there was no 

consent under the TCPA because the medical providers were not authorized to provide the 

numbers to the collector due to HIPAA prohibitions. The court agreed to certify the class of 

people that gave their numbers to the medical provider who then provided the number to the 

collector; there was no dispute that the numbers were given to the medical provider and those 

people were readily indentified. After certifying the class, Judge Guzman granted summary 

judgment in favor of the debt collector. 2012 WL 170968, *2 (N.D. Ill. Jan. 20, 2012) 

- 4 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 4 of 16 PageID #:1094
(“plaintiff’s TCPA claim, and thus that of the class he represents, fails, with or without the 

HIPAA graft he urges.”). Nothing like that is alleged here. The legal theory is completely 

different, there is no agreement that all the class members gave the creditor their cell phone 

number, and there is no agreement on the identity of the class. 

The class certified in Balbarin was restricted to those people for whom defendant’s 

records did not show consent. The certification order in Balbarin, 10-cv-01846, was premised 

on the assumption that consent under the TCPA depended exclusively on the records in the debt 

collector’s possession. Balbarin’s reading of the TCPA is contrary to the Federal 

Communication Commission’s interpretation of the Act. In re Rules and Regulations 

Implementing The Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, ¶ 9, 2008 WL 

65485, at **3 (Jan. 4, 2008) (“the provision of a cell phone number to a creditor, e.g., as part of a 

credit application, reasonably evidences prior express consent by the cell phone subscriber to be 

contacted at that number regarding the debt.”) (“2008 Order”).1

 As in Mitchem, the class 

definition in this case is significantly different than in Balbarin. The records in possession of 

Honda are directly relevant to the consent issue and make this case unlike Balbarin.

For these reasons, Pesce, Mitchem and Balbarin do not support class certification. If 

anything, Pesce supports denying certification because Judge Gettleman properly recognized that 

consent was an individualized issue. Exhibit A, pp. 1-2. 

C. Individualized Questions of Fact Preclude Certification and Demonstrate 

 that a Class Action is Not a Superior Method of Litigating this Case 

Federal Rule 23(b)(3) requires that common issues of fact or law predominate over 

questions affecting only individual class members. Common issues predominate only if “there 

 

1

 The FCC’s Orders is binding on this Court pursuant to the Hobbs Act, which reserves to the courts of 

appeals exclusive jurisdiction to determine the validity of all final FCC orders. 28 U.S.C. § 2342(1); 47 

U.S.C. § 402; City of Peoria v. Gen. Elec. Cablevision Corp., 690 F.2d 116, 119-20, 122 (7th Cir. 1982)

- 5 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 5 of 16 PageID #:1095
exists generalized evidence that proves or disproves an element on a simultaneous, class-wide 

basis, since such proof obviates the need to examine each class member’s individual position.” 

Foreman v. PRA III, LLC, 2007 WL 704478 (N.D. Ill. 2007); Gene and Gene, LLC v. Biopay 

LLC, 541 F.3d 318, 328 (5th Cir. 2008). The predominance inquiry looks to “how a trial on the 

merits would be conducted if a class were certified.” Gene and Gene, 541 F.3d at 328. The 

predominance criterion is far more demanding than the identification of a single common issue, 

and the “movant cannot gerrymander predominance by suggesting that only a single issue be 

certified for class treatment when other individualized issues will dominate or be meaningfully 

material to the resolution of the absent class members’ claims.” Hamilton v. O’Connor 

Chevrolet, Inc., 2006 WL 1697171, at *6 (N.D. Ill. 2006). 

“If the court is required to conduct individual inquiries to determine whether each 

potential class member falls within the class, the court should deny certification.” Ramirez v. 

Palisades Collection LLC, 250 F.R.D. 366, 369 (N.D.Ill.2008). See also, CE Design Ltd. v. King 

Architectural. Metals, Inc., 637 F. 3d 723, 726 (7th Cir. 2011) (“an arguable defense peculiar to 

the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the 

class [and] bring into question the adequacy of the named plaintiff's representation.”). As 

discussed below, the question of consent is an individualized issue that would swamp any 

common issues that might exist. 

 1. Legal Analysis of Consent Under the TCPA 

As the FCC has stated, “persons who knowingly release their telephone numbers have in 

effect given their invitation or permission to be called at the number which they have given, 

absent instructions to the contrary.” 2008 Order, 23 FCC Rcd. 559, ¶ 9, 2008 WL 65485, at **3 

(quoting 1992 TCPA Order, 7 FCC Rcd at 8769, para. 31. The FCC’s 2008 and 1992 Orders 

- 6 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 6 of 16 PageID #:1096
are consistent with the TCPA’s legislative history showing that prior express consent is present 

when an individual provides a phone number:

The restriction on calls to emergency lines, pagers, and the like does not apply 

when the called party has provided the telephone number of such a line to the 

caller for use in normal business communications. The Committee does not intend 

for this restriction to be a barrier to the normal, expected or desired 

communications between businesses and their customers. 

H.R. Rep. No. 102-317, at 17 (1991). 

Courts have universally held that the provision of debtor’s cell phone number is evidence 

that the debtor consented to receive auto-dialed calls from a debt collector. Mitchem, 2012 WL 

170968, *1 (“a consumer’s provision of his cell telephone number to a creditor ... reasonably 

evidences [his] prior express consent to [being] contacted at that number about the debt absent 

instructions to the contrary” (internal quotations and citation omitted)); Greene v. DirecTV, Inc., 

2010 WL 4628734, at *3 (N.D. Ill. Nov. 8, 2010) (consent found when debtor gave his cellular 

telephone number to a credit bureau); Cunningham v. Credit Mgmt. L.P., 2010 WL 3791104 

(N.D. Tex. 2010). 

2. Courts hold that Consent Involves an Individualized Inquiry, 

 Precluding Certification 

 Numerous courts have denied certification on by finding that the existence of consent is 

an individualized issue. In Hicks v. Client Services, Inc., 2008 WL 5479111 (S.D. Fla. 2008), 

the court refused to certify a TCPA class consisting of debtors who received calls from a debt 

collector on their cell phones because evidence concerning whether each class member 

consented to receive the calls (by releasing his or her phone number to the creditor) would be 

different for every class member. 2008 WL 5479111, *7-*8. In denying certification, the court 

held that deciding the class’s claim would necessitate “mini-trials on consent of every class 

member.” Id. Similarly, the court in Versteeg v. Bennett, Deloney & Noyes, P.C., 2011 WL 

- 7 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 7 of 16 PageID #:1097
159805 (D. Wy. Jan. 13, 2011), refused to certify a TCPA class against a debt collector for the 

same reason. 2011 WL 159805, at *3. 

 Further, as noted above, Judge Gettleman decertified a TCPA class, holding, “[t]he class 

certified was too broad because it included as class members persons who received a nonemergency telephone call from defendant . . . when the original creditors’ records show that the 

person provided the cell phone number to the creditor but defendant’s records do not. * * * In 

light of the file-by-file analysis which must be conducted as to the existence of consent, class 

certification should be denied.” Pesce, 11-cv-01379, Dkt. 126 (Exhibit A, p. 2). Judge 

Gettleman denied Plaintiff leave to substitute in as a class member in the Pesce litigation. Id. 

(denying Pesce dkt. no. 106, Exhibit B). 

Most recently, the court in Balthazor v. Central Credit Servs. Inc., 2012 WL 6725872 

(S.D. Fla. Dec. 27, 2012) denied certification of a TCPA cell phone case, holding, 

The Court finds the reasoning of Hicks and Gene & Gene, LLC persuasive. 

Resolution of each putative class member's TCPA claim would necessarily 

involve an individual assessment of whether each class member consented to 

receive telephone calls on their cellular telephone. The Court rejects Plaintiff's 

argument that consent is not an obstacle to class certification. 

Id. at *4. 

C. Plaintiff’s Class Definition is Flawed and a Class Action is Not a Superior 

 Method of Litigating this Case Because the Class Cannot Be Identified 

Plaintiff is required to demonstrate that an identifiable class exists. Simer v. Rios, 661 

F.2d 655, 669-70 (7th Cir.1981) (where the court reversed the certification of a class upon 

finding that it would be too difficult to identify individual class members). See, e.g., Vigus v. 

Southern Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 238 (S.D. Ill. 2011) (denying 

certification of TCPA claims on ascertainability grounds where court could not easily determine 

“whether each telephone number had actually been reassigned to a new customer,” and “[e]ven 

- 8 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 8 of 16 PageID #:1098
for any reassigned numbers, . . . it would be necessary to identify the people assigned to those 

numbers at the times the allegedly offending calls were made, which may not be the people 

currently assigned to those numbers”). 

Here, the putative class includes: 

(1) All persons in the United States (2) to whose cellular telephone number (3) 

FCS or American Honda placed a non-emergency telephone call (4) using an 

automatic telephone dialing system or an artificial or prerecorded voice (5) within 

4 years of the complaint (6) with respect to a debt allegedly owed to America 

Honda (7) where FCS or American Honda obtained the cellular telephone that 

was called via skip trace methods. 

Dkt. 52, p. 1. 

 1. The Class Definition is Flawed. 

 Plaintiff seems to believe that if the class is narrowed to those called via a skip trace it is 

easy to identify the class and those people have a meritorious claim. Plaintiff is wrong. The 

definition incorrectly assumes a person called via a skip has a claim and that such people can be 

located. As explained in Honda’s brief (incorporated by reference here), more than 40% of the 

putative class members at least arguably consented to receive FCS’s calls by releasing their 

numbers to Honda. See Honda’s Response, dk. 75, p. 19. This alone shows the flaw in the class 

definition. 

This is similar to the flaws in Pesce and the effort to amend the class in Pesce to add new 

class representatives. The proposed Second Amended Complaint in Pesce contained a second 

proposed class representative – Diana Smith - who was a person called by FCS after FCS 

performed a skip trace. (Exhibit B) Notably, Ms. Smith was not added as a class representative 

in the present suit. Why? The evidence demonstrated that, contrary to her pleading, she had 

provided her cell phone number to her creditor. Pesce dkt. no. 123, p. 4, Exhibit C). Ms. Smith 

- 9 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 9 of 16 PageID #:1099
is an example of how consent may exist in Honda’s records even though putative class members 

were skip traced by FCS. 

In addition to the evidence of consent which exists in Honda’s records, an unknown 

number of additional putative class members consented to receiving calls from FCS by providing 

their numbers to FCS. Identification of these individuals will require a fact intensive, accountby-account examination of the of contracts, internal collection data, letters from debtors and 

recordings of phone calls with debtors. (Exhibit D, excerpt of 30(b)(6) dep. of FCS, pp. 49-56).2 

In light of the file-by-file review that must be undertaken to determine whether consent 

exists, this Court should deny Plaintiff’s Motion to Certify. 

 2. The Class Cannot Be Identified 

The class is fatally flawed because it will be impossible to identify the putative class 

members. The TCPA provides that it is unlawful to place a call a "to any telephone number 

assigned to a . . . cellular telephone service . . . for which the called party is charged for the 

call." 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). The term "called party" is not defined by 

the TCPA. The Seventh Circuit has held that “called party” means the person subscribing to the 

called number at the time the call is made. Soppet v Enhanced Recovery, 679 F.3d 637 (7th Cir. 

2012). In Soppet, the defendant debt collector called a cellular telephone number that the debtor 

had provided to the creditor. Id. at 639. At the time of the calls, however, the debtor no longer 

subscribed to the cellular telephone number called by the debt collector. Id. The court stated 

that the term “‘called party’ must mean Cell Number's current subscriber, because only the 

 

2

 Plaintiff is wrong when he argues that consent can be given only at the time the account is opened 

(Memo at p. 4, citing Meyer v PRA, 2012 U.S. App. LEXIS 21136, 11-56600 (9th Cir. Oct. 12, 2012)). 

On December 28, 2012, the Ninth Circuit revised its prior opinion and stated that “[p]ursuant to the FCC 

ruling, prior express consent is consent to call particular telephone number in connection with a particular 

debt that is given before the call in question is placed.” 2012 WL 6720599, *1 (9th Cir. Dec 28, 2012). 

- 10 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 10 of 16 PageID #:1100
current subscriber pays.” Id. The court ultimately conclude that “[c]onsent to call a given 

number must come from its current subscriber.” Id. at 641. 

Applying Soppet, in order to properly identify a class, Plaintiff is required to identify the 

current subscribers at the time the subject telephone calls were placed. As discussed below, it is 

impossible to identify the subscribers of the phones at the times the calls were placed. 

 a. The Identification of a “Wrong Numbers” Results in the 

 Creation of Anonymous Class Members 

The class is fatally flawed because it will be impossible to identify persons similar to 

Plaintiff – persons who were called as a result of a skip trace but are not the underlying debtors. 

Plaintiff’s inclusion in this suit throws a monkey wrench into the identification of the putative 

class members because he is not the debtor. Rather, “[Plaintiff’s] sister, Kai Jamison (Kai), 

incurred a debt with American Honda” and “FCS was calling Jamison on behalf of American 

Honda in an attempt to collect Kai’s debt.” Complaint, ¶¶ 14-15. The underlying collection 

records demonstrate that Plaintiff informed FCS that it was calling the wrong number and that he 

could not provide alternative contact information for Kai Jamison. Exhibit B (“D BRTHR 

CLLD OFFICE FROM HOME NMBR TO ADVISE WE HAVE WRNG NMBR..DSNT 

SPEAK TO SISTER AND CLDNT PROVIDE ALT CONTACT INFO.”). Essentially, Plaintiff 

reported to FCS that it was calling a “wrong number.” The collection records do not identify 

Plaintiff by name or address. To the extent other persons were mistakenly called for another 

person’s debt, FCS would have no way of knowing who those individuals are. 

Plaintiff would have likely not filed this lawsuit but for the fact that FCS was required to 

disclose the names of putative skip traced class members in the Pesce litigation in response to a 

motion to compel. (Exhibit F, excerpts of Jamison’s testimony). The disclosure of Mr. 

- 11 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 11 of 16 PageID #:1101
Jamison’s telephone number allowed his attorney to contact him.3

 Defendant is not providing 

this history in an effort to relitigate Judge Gettleman’s ruling. Rather, these facts serve to 

demonstrate that certification should be denied because the identification cannot be resolved 

through any recognized methods. 

 b. There is No Recognized Means to Identify The Putative Class 

 Members 

In addition to identifying the current subscriber at the time the subject calls were placed, 

Plaintiff must demonstrate whether a number called by FCS was assigned to a cell phone (and 

not a landline) at the time FCS called the number. These undertakings are complicated by the 

fact that subscribers can port numbers from landlines to cell phones and vice versa. See Federal 

Communications Commission, Wireless Local Number Portability (Wireless LNP) Frequently 

Asked Questions, available at http://www.fcc.gov/encyclopedia/wireless-local-numberportability-wlnp (accessed February 4, 2013. 

Assuming for the sake of argument that it is possible for Plaintiff to determine if the call 

was placed to a cell phone at the time the calls was placed, it is not possible to identify the 

current subscribers who were actually called by FCS at the times the calls were placed. Due to a 

limited supply of cell phone numbers, many wireless service providers “recycle” a cell number 

from one customer to the next. As a result, the purchaser of a new cell phone number may 

 

3

 Mr. Jamison’s lawyer has claimed that he contacted Mr. Jamison when he was “contacting class 

members” after the Pesce class action was certified. Pesce vs. First Credit Services, 11 C 1379, Dkt. 119, 

p. 3. Mr. Pesce’s counsel justified contacting Mr. Jamison by arguing that “the protective order does not 

apply to any contact with the persons listed in the skip trace lists as those lists were not subject to the 

protective order because the documents were not designated as confidential.” Id. at p. 3. Mr. Pesce’s 

lawyer also argued that that he did not improperly solicit Mr. Jamison by arguing that “there could be no 

solicitations as a matter of law as to claims the class members already had as plaintiff’s counsel already 

represented the proposed plaintiffs.” Id. a p. 7, fn. 6. Notably, in an earlier court appearance, Mr. Pesce’s 

lawyer had argued that he thought that the court had given him permission to search for a substitute 

plaintiff in light of the consent issues surrounding Mr. Pesce. Judge Gettleman denied a motion for rule to 

show cause for violation of a protective order, holding that “Plaintiff did not violate the protective order 

because the document in question was not marked confidential as required to be protected by the order.” 

Pesce, 11 C 1379, Dkt. 126, p. 2 (Exhibit A).

- 12 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 12 of 16 PageID #:1102
receive a call intended for the prior cell phone subscriber or user. Soppet, 679 F.3d 638-39 

(“Bill Collector puts a machine on the job and repeatedly calls Cell Number, at which Customer 

had agreed to receive phone calls by giving his number to Creditor. . . . But Customer no longer 

subscribes to Cell Number, which has been reassigned to Bystander.”); Meadows v. Franklin 

Collection Service Inc., 414 Fed.Appx. 230, 2011 WL 479997 (11th Cir. Feb. 11, 2011)

(“Meadows did not owe any of the debts that were the subject of the telephone calls at issue in 

this case. Those calls concerned the collection of debts owed by Meadows's daughter, Elizabeth 

Meadows Taylor (“Taylor”), and by the family that previously owned Meadows's telephone 

number, the Tidmores. * * * Meadows's telephone number at her residence was assigned to the 

Tidmores until May 2006, at which point Meadows acquired it.”). If debt collection calls 

occurred four years ago (the TCPA has a four year statute of limitations), it is possible that the 

phone may have been recycled to different persons on numerous occasions. 

 c. There is No Recognized Means to Identify Subscribers Because 

 Numbers Are Shared and No Records May Reflect This Fact 

Alternatively, even if Plaintiff could determine if the call was placed to a cell phone at 

the time the calls was placed, it is not possible to identify the persons who were actually called 

by FCS in light of the fact phone number may have been shared between two related persons as 

discussed in Honda’s Response at pages 11-12 and 27. See also, Osario v. State Farm Bank 

F.S.B., 2012 WL 1671780, *1 (S.D. Fla. May 10, 2012) (“The precise relationship between 

Osorio and Betancourt is unclear; however, it is undisputed that Osorio and Betancourt live 

together and have an adult son (“John”).. Additionally, Osorio, Betancourt, and John all share a 

Metro PCS family plan, which includes both 8626 and 5645. The records provided by Metro 

PCS solely identify Osorio as the account holder, and, the records do not identify which numbers 

belongs to Osorio, Betancourt, or John.” (citations omitted)). Where a phone bill is under one 

- 13 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 13 of 16 PageID #:1103
persons name but a second person uses that number as a contact number, it might be impossible 

to identify the authorized user of the phone. 

 d. There is No Recognized Cell Phone Ownership Database 

Plaintiff ignores the fact it is not possible to identify the historical subscribers to a cell 

phone because there is no publicly available list of cell phone numbers. See Report of Ken 

Sponsler (Exhibit G). While “[s]ome mobile service providers participate in a Caller Name or 

CNAM database . . . [t]he CNAM database is voluntary and . . . it is not universally available 

even among mobile service providers that offer the service.” Id., p. 2. For example, Verizon 

does not participate in the CNAM database. Further, “CNAM is relevant only for current

subscriber and the data is not completely reliable due to latency in updates and inaccurate 

information.” Id. (emphasis supplied). 

 “Pre-paid telephone services introduce another difficulty in determining current as well 

as historical subscriber information.” Id. This is because “[b]uyers of pre-paid telephone 

services have not been required to provide name or any other identifying information to purchase 

the services.” Id. Moreover, databases do not “necessarily definitively identify authorized users 

who may have provided the number during the normal course of business.” Id. Further, as 

noted above, “[i]t is common practice for family and friends to share plans where a single 

subscriber’s name is associated with multiple numbers on the account for phones being used by 

family and others. Many businesses also provide mobile devices to their employees which could 

be used for personal as well as business purposes.” Id.. 

Sponsler also cites to “Mobile Virtual Networks” as adding “[a]nother layer of difficulty 

in determining historical user identities of mobile telephones is the increasingly common practice 

of ‘wholesaling’ . . . [where] Virgin Mobile, for example, actually provides all of its mobile 

- 14 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 14 of 16 PageID #:1104
subscriber services through Sprint.” Id. at p. 3. According to Sponsler, “Virgin Mobile 

subscribers are actually on the Sprint network, which further complicates the ability to reliably 

associate subscribers through providers.” Id. Finally, Sponsler opines that skip-trace searches 

cannot accurately identify cell phone subscribers because even costly skip traces “do not produce 

reliably effective or consistent results.” Id. 

Sponsler’s report demonstrates that it is not possible to identify the proposed class. 

III. CONCLUSION 

 Plaintiff’s Memorandum glosses over the individualized issues regarding consent and the 

identification of putative class members. In particular, Plaintiff’s Memorandum fails to identify 

how he intends to identify the putative class members, improperly suggesting that it as an 

administrative matter that can be addressed after certification is granted in his favor. It is 

Plaintiff’s burden to demonstrate that he can identify the putative class. Because the proposed 

class cannot be accurately ascertained, certification should be denied. 

WHEREFORE, for the above reasons, Defendant FIRST CREDIT SERVICES, INC., 

respectfully requests that This Honorable Court Deny Plaintiff’s Motion for Class Certification. 

Respectfully submitted, 

By: /s/ James C. Vlahakis

Counsel for FIRST CREDIT SERVICES, INC. 

David M. Schultz 

James C. Vlahakis 

HINSHAW & CULBERTSON 

222 North LaSalle Street, Suite 300 

Chicago, Illinois 60601-1081 

(312) 704-3715 

jvlahakis@hinshawlaw.com

- 15 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 15 of 16 PageID #:1105
CERTIFICATE OF SERVICE 

I hereby certify that on February 4, 2013, I electronically filed the above document with 

the Clerk of the Court using the CM/ECF system, which will send notification of such filing(s) to 

all counsel of record. 

/s/ James C. Vlahakis 

James C. Vlahakis 

Hinshaw & Culbertson LLP 

Attorney for Defendant 

222 North LaSalle, Suite 300 

Chicago, IL 60601 

tel 312-704-3715 

- 16 - 

130513930v2 0936232 

Case: 1:12-cv-04415 Document #: 79 Filed: 02/04/13 Page 16 of 16 PageID #:1106