IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KOFI JAMISON,

 Plaintiff,

 v.

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

ACCOUNTS RECEIVBABLE 

TECHNOLOGIES, and AMERICAN HONDA 

FINANCE CORPORATION, 

 Defendants.

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 12 C 4415

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Kofi Jamison (“Jamison”) filed a putative class action complaint against 

Defendants First Credit Services, Inc. (“FCS”) and American Honda Finance Corporation 

(“Honda”) alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 

U.S.C. § 227. Jamison now moves this Court to certify this case as a class action pursuant to 

Federal Rule of Civil Procedure 23. The Defendants object to Jamison’s motion for class 

certification and have also separately moved this Court to stay this case while the Federal 

Communications Commission interprets certain issues involving the TCPA. For the reasons set 

forth below, all of the motions are denied.

BACKGROUND1

This case is the sequel to an earlier filed putative class action entitled Pesce v. First 

Credit Services, Inc., No. 11 C 1379 (N.D.Ill. 2011). That case was litigated before the 

 1 The facts described in the background section are taken from the parties’ briefs, the 

exhibits attached to their briefs, the declaration submitted by Melissa Metcalf as well as certain, 

non-material facts that were judicially noticed.

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Honorable Robert W. Gettleman. The prosecuting attorneys and Defendant FCS were part of the 

original; however, this case contains a new lead plaintiff and an expanded cast of defendants. 

Class certification was initially granted in Pesce; however, upon a subsequent motion by FCS, 

Judge Gettleman decertified the class because: (1) the defined class was too broad because it 

included class members who consented to receiving calls from FCS on their wireless phones 

because they had provided their cellphone numbers to Honda as contact numbers; and (2) the 

plaintiff was not a proper class representative because his individual issues predominated over 

the class-wide issues. Pesce at Doc. 126. During discovery in that case, the Plaintiff identified 

Jamison as a potential class member. Jamison sought leave to intervene in Pesce to be named 

the new class representative. Id. Judge Gettleman denied that motion because he decertified the 

class. After the plaintiff in that case settled, Jamison filed the instant case in which he modifies 

the definition of the putative class in an attempt to avoid the effect of Judge Gettleman’s ruling.

Jamison is a convicted felon. He pled guilty in 2008 to access device fraud. Specifically, 

he was part of a scheme to steal credit card and debit card information, transfer that information 

to other cards, use those other cards to buy iPods and other goods and then sell those goods on 

the street. Jamison filed this lawsuit a few weeks after his probation ended in 2012. 

Honda is an entity that provides financing to individuals seeking to purchase Honda 

automobiles. A purchaser of an automobile generally has the option of paying the full purchase 

price in cash at the time of purchase or he can finance his purchase by obtaining a loan and 

repaying that loan in monthly installments. If a purchaser chooses to finance his purchase, he

generally obtains the loan through a financing company that is a subsidiary of the automobile 

manufacturer. In this case, Honda Finance is a subsidiary of American Honda Motor Co., Inc., 

the sole authorized distributor of Honda motor vehicles and other Honda products in the United 

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States. See About Honda Financial Services and American Honda Finance Corporation, 

http://www.hondafinancialservices.com/help/about-us. If, after purchasing an automobile, a 

borrower fails to make payments, Honda may be required to retain third-party debt collectors to 

attempt to collect the debt. One of these third-party collectors is FCS.

Jamison did not finance the purchase of an automobile through Honda and was not 

indebted to Honda. However, Jamison’s sister was indebted to Honda and had failed to pay the 

monthly installments on her loan. As a result, Honda referred the collection of her account to 

FCS. FCS ran a “skip-trace” on Jamison’s sister, which yielded the number for Jamison’s 

cellular telephone. FCS then allegedly called Jamison’s cellphone multiple times between 

August and September 2010 using an automated dialing system in an attempt to collect the debt. 

Jamison never consented to Honda or FCS calling him on his cellphone. There is a question as 

to whether Jamison is the actual subscriber of the cellphone FCS allegedly called. The account 

for the wireless phone number that was allegedly called is in Jamison’s mother’s name, not 

Jamison’s. The bills are sent to Jamison’s mother’s house. Jamison also conceded during his 

deposition that AT&T would look to his mother rather than to him for payment. However, 

Jamison also testified that he pays the bill.

FCS allegedly obtained the wireless numbers of many Honda customers via running 

“skip-traces.” It then used its automated dialing system to call 2,887 cellphone numbers that 

were obtained by skip-trace methods. However, there is an open question as to whether these 

individuals provided their consent to Honda to call their wireless numbers. Honda routinely 

obtains phone numbers from its customers. Its credit application has included a space for 

cellphone numbers since 2008, and even before then it was common for customers to provide 

cellphone numbers. However, when Honda gave information about debtors to FCS so that FCS 

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could attempt to collect those debts, Honda provided few, if any, wireless numbers even when 

Honda had those numbers somewhere in its system. As a result many of the numbers obtained 

by FCS through skip-tracing were previously provided to Honda.

THE TCPA

Congress enacted the TCPA on December 20, 1991 to address telephone marketing calls 

and certain telemarketing practices that Congress found to be an invasion of consumer privacy. 

As is relevant here, the TCPA regulates the use of automated telephone equipment. Specifically, 

section 227(b)(1)(A) prohibits the use of any automatic telephone dialing system to call any 

telephone number assigned to a cellular telephone service absent an emergency purpose or the 

“prior express consent of the called party.” Congress believed that automated or prerecorded 

telephone calls were a greater nuisance and invasion of privacy than live solicitation calls, that 

such calls were costly and that such calls were inconvenient. See In the Matter of Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-

278, 23 F.C.C. Rcd 559, 559-60, ¶ 2 (2008) (“2008 TCPA Order”).

The Federal Communications Commission (“FCC”) is the agency vested with authority 

to issue regulations implementing the TCPA. On July 3, 2003, the FCC found that a predictive 

dialer falls within the meaning and statutory definition of “automatic telephone dialing 

equipment” and the intent of Congress. See In the Matter of the Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 18 FCC 

Rcd 14014 (2003) (“2003 TCPA Order”). On July 4, 2008, the FCC clarified the existing rules 

under the TCPA. In particular, it affirmed that it is unlawful to make a call using an automatic 

telephone dialing system or an artificial or prerecorded message to a wireless telephone number 

for purposes of collecting a debt unless the call is made with the “prior express consent” of the 

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called party. See 2008 TCPA Order at 564, ¶ 9. The FCC concluded “that 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.” 

Id. The FCC “emphasize[d] that prior express consent is deemed to be granted only if the 

wireless number was provided by the consumer to the creditor, and that such number was 

provided during the transaction that resulted in the debt owed.” Id. at 564-65, ¶ 10. 

Additionally, the FCC ruled that “a creditor on whose behalf an autodialed or prerecorded 

message call is made to a wireless number bears the responsibility for any violation of the 

Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated 

as if the creditor itself placed the call.” Id. at 565, ¶ 10. The 2008 ruling also affirmed that a 

predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s 

restrictions on the use of autodialers. Id. at 566, ¶ 12.

Under the Administrative Orders Review Act, otherwise known as the Hobbs Act, the 

Court of Appeals is vested with exclusive jurisdiction to determine the validity of all final orders 

of the FCC. 28 U.S.C. § 2342(1). This Court is therefore bound by the FCC’s orders, which are 

final and controlling. See CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 446 (7th

Cir. 2010) (holding that the FCC’s orders relating to the TCPA are binding under the Hobbs 

Act).

DISCUSSION

I. Honda’s and FCS’s Motions to Stay

Honda and FCS have both requested the Court to stay this action pursuant to the doctrine 

of primary jurisdiction so that the FCC may review and rule on certain elements at issue in this 

case. (Docs. 39, 42.) Specifically, Honda asks the Court to stay this case while it petitions the 

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FCC for an interpretation on the scope of the FCC’s ruling that: “a creditor on whose behalf an 

autodialed or prerecorded message call is made to a wireless number bears the responsibility for 

any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that 

creditor are treated as if the creditor itself placed the call.” (Id. at 40.) Honda and FCS also both 

ask the Court to stay this case until the FCC rules on In re Petition for Declaratory Ruling 

Regarding Non-Telemarketing Use of Predictive Dialers, CG Docket No. 02-278, DA 12-1653, 

27 F.C.C. Rcd 13031 (Oct. 16, 2012). (Id. at 42.) Neither issue warrants a stay of the case.

A. The FCC has Unequivocally Ruled that Creditors are Liable for Calls Placed 

by Third-Party Debt Collectors in Violation of the TCPA

The doctrine of primary jurisdiction requires referral of a matter to an administrative 

agency when the resolution of a claim turns on “issues which, under a regulatory scheme, have

been placed within the special competence of an administrative body.” United States v. Western 

Pac. R.R. Co., 352 U.S. 59, 63-64 (1956); see also Syntek Semiconductor Co. v. Microchip 

Tech., Inc., 307 F.3d 775, 780 (9th Cir. 2002) (describing the primary jurisdiction doctrine as “a 

prudential doctrine under which courts may, under appropriate circumstances, determine that the 

initial decisionmaking responsibility should be performed by the relevant agency rather than the 

courts.”). However, “[t]he doctrine should be invoked sparingly since it often results in added 

expense and delay to the litigants.” United States v. DISH Network, LLC, No. 09-3073, 2011 

WL 475067, at *2 (C.D. Ill. Feb. 3, 2011) (citing United States v. McDonnell Douglas Corp., 

751 F.2d 220, 224 (8th Cir. 1984); Mississippi Power & Light Co. v. United Gas Pipeline Co., 

532 F.2d 412, 418-19 (5th Cir. 1976)). The Seventh Circuit has not defined specific criteria for 

how courts should apply the primary jurisdiction doctrine; however, it approved of the Second 

Circuit’s decision to focus on whether a case raises issues “extending beyond the conventional 

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experience of judges or falling within the realm of administrative discretion to an administrative 

agency with more specialized experience.” Arsberry v. Illinois, 244 F.3d 558, 563 (7th Cir. 

2001) (internal quotation marks omitted) (quoting National Communications Ass’n, Inc. v. AT&T 

Co., 46 F.3d 220, 222-23 (2d Cir. 1995)).

In determining whether invocation is appropriate, courts often consider several factors 

including: (1) whether the issue is within the conventional experience of judges or whether it 

involves technical or policy considerations within the agency's particular field of expertise; (2) 

whether the issue is particularly within the agency's discretion; (3) whether there exists a 

substantial danger of inconsistent ruling; and (4) whether a prior application to the agency has 

been made. See, e.g., DISH Network, LLC, 2011 WL 475067, at *2 (citing Davel 

Communications, Inc. v. Qwest Corp., 460 F.3d 1075, 1086-87 (9th Cir. 2006); Nat’l 

Communications Ass’n, Inc., 46 F.3d at 222); Frydman v. Portfolio Recovery Associates, No. 11 

C 524, 2011 WL 2560221, at *2 (N.D. Ill. June 28, 2011) (Dow, J.)

Moreover, “the doctrine is not designed to ‘secure expert advice’ from agencies ‘every 

time a court is presented with an issue conceivably within the agency’s ambit.’” Clark v. Time 

Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (quoting Brown v. MCI Worldcom Network 

Servs., 277 F.3d 1166 (9th Cir. 2002)). Rather, the doctrine should only be invoked “if a claim 

requires resolution of an issue of first impression, or of a particularly complicated issue that 

Congress has committed to a regulatory agency, and if protection of the integrity of a regulatory 

scheme dictates preliminary resort to the agency which administers the scheme.” Id. (internal 

citations and quotations omitted).

Honda argues that the Court should invoke the doctrine of primary jurisdiction and stay 

the case because the FCC’s guidance regarding the application of vicarious liability in the debt 

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collector context is purportedly scant. Specifically, Honda would like to stay this case so that it 

can petition the FCC for an interpretation of what the phrase “on behalf of” means as that phrase 

is used in paragraph 10 of the 2008 TCPA Order. That paragraph states in relevant part that “a 

creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number 

bears the responsibility for any violation of the Commission’s rules. Calls placed by a third 

party collector on behalf of that creditor are treated as if the creditor itself placed the call.” 

According to Honda, the phrase “on behalf of” is ambiguous and Honda may be relieved from 

liability in this case depending on how the FCC interprets the phrase. The Court disagrees. 

While the FCC’s guidance on vicarious liability is concededly scant, it has been 

unequivocal that an entity can be held liable for calls made on its behalf even if the entity itself 

did not directly place the call. See 2008 TCPA Order at ¶ 10 (“calls placed by a third party 

collector on behalf of [a] creditor are treated as if the creditor itself placed the call”). 

Additionally, in a separate but related section of its promulgated rules, the FCC has been 

unequivocal that “[c]alls placed by an agent of telemarketer are treated as if the telemarketer 

itself placed the call.” See Rules and Regulations Implementing the Telephone Consumer 

Protection Act of 1991, Memorandum Opinion and Order, 100 FCC Rcd 12391, 12397 ¶ 13 

(1995). Interpreting these rules does not extend beyond the conventional experience of judges or 

require the specialized knowledge of the FCC. 

Honda’s argument that they do rests on the analysis provided in two recent decisions in 

which the courts granted stays under the primary jurisdiction doctrine so that the FCC may 

consider the question of what the phrase “on behalf of” means as that phrase is used in 47 C.F.R. 

§64.1200(d)(3), a separate but related FCC Rule that regulates telemarketing. See Charvat v. 

Echostar Satellite, LLC, 630 F.3d 459, 466-67 (6th Cir. 2010); Dish Network, 2011 WL 475067, 

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at *2-3. This FCC regulation holds an entity liable for telemarketing calls, as opposed to debt 

collecting calls, placed to wireless numbers by third parties “on behalf of” the entity.

2

In Charvat, the Sixth Circuit invoked the doctrine of primary jurisdiction based on “the 

question of whether the [TCPA] and its accompanying regulations permit Charvat to recover 

damages from EchoStar, an entity that did not place any illegal calls to him but whose 

independent contractors did.” 630 F.3d at 465. The Sixth Circuit found that the answer to this 

question turned on the meaning of a number of provisions. One of which was whether the 

language in §227(c) that allows a person who receives more than one call “by or on behalf of the 

same entity” to sue for a violation of the TCPA “create[s] liability for entities on whose behalf 

calls are made even when the calls are placed by independent contractors rather than by agents or 

employees.” Id. As a result, the Sixth Circuit decided that it should invoke the primary 

jurisdiction doctrine so that the question could be referred to the FCC for a decision. The same 

issues presented in Charvat were at issue in Dish Network. Accordingly, the court in Dish 

Network followed the analysis in Charvat, held the doctrine the primary jurisdiction applied and 

stayed the case. See Dish Network, 2011 WL 475067, at *2-3.

While Charvat and Dish Network appear to provide persuasive reasoning to stay this 

case, a closer examination reveals a number of differences between those cases and this one that 

militate against a stay. First, the meaning of “on behalf of” in the 2008 TCPA Order is much 

clearer than it is in 47 C.F.R. §64.1200(d)(3). As a preliminary matter the Court notes that the 

use of the phrase “on behalf of” has come to have two meanings as it is applied in the American 

 2 47 C.F.R. §64.1200(d)(3) states in relevant part: “If a person or entity making a call for 

telemarketing purposes (or on whose behalf such a call is made) receives a request from a 

residential telephone subscriber not to receive calls from that person or entity, the person or 

entity must record the request and place the subscriber’s name, if provided, and telephone 

number on the do-not-call list at the time the request is made.”

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version of the English language. Traditionally, “on behalf of” meant “as the agent or 

representative of” while “in behalf of” meant “in the interest or for the benefit of.” Bryan A. 

Garner, Garner’s Modern American Usage, 91-92, Oxford Press (2d ed. 2003). However, the 

distinction is rarely observed in the current usage of the language. Id.; see also MERRIAM 

WEBSTER’S COLLEGIATE DICTIONARY, 103 (10th ed. 1993). 3

In the context of the 2008 TCPA Order, it is clear that the FCC intended that any calls 

placed for the benefit of a creditor by a third party debt collector should be treated as if the 

creditor placed the call itself. The relevant portion of the 2008 TCPA Order states that:

Calls placed by a third party collector on behalf of that creditor are treated as if 

the creditor itself placed the call

2008 TCPA Order at ¶ 10. The concern in Charvat that liability may be limited to those 

situations where a call is placed on behalf of an entity by an employee is clearly precluded here 

by the use of the term “third party collector.” This term indicates that a creditor should be liable 

for calls violative of the statute made by the debt collectors they hired to collect debts allegedly 

owed to them regardless of whether traditional agency law would deem the debt collector an 

agent or independent contractor of the creditor. See, e.g., Soppet v. Enhanced Recovery Co., 

LLC, 679 F.3d 637, 642 (7th Cir. 2012) (noting that as between a debt collector and a creditor, 

“[i]ndemnity may be automatic under ¶ 10 of the 2008 TCPA Order [because it] states that calls 

placed by a third-party collector on behalf of a creditor are treated as having been made by the 

creditor itself”); Martin v. Cellco Partnership, No. 12 C 5147, 2012 WL 5048854, at *2 (N.D. 

 3 In current British use of the English language the distinction is not observed at all. “On 

behalf of” has replaced “in behalf of.” See MERRIAM WEBSTER’S COLLEGIATE DICTIONARY, 103 

(10th ed. 1993).

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Ill. Oct. 18, 2012) (“[T]he 2008 TCPA Order appears to impose a strict liability standard on 

creditors who farm their debts out to third-party debt collectors.”).

Conversely, 47 C.F.R. 64.1200(d)(3) does not explain the relationship between the 

calling party and the potentially liable separate person or entity in the same explicit detail as the 

2008 TCPA Order. The relevant portion of 47 CFR 64.1200(d)(3) states that:

(3) Recording, disclosure of do-not-call requests. If a person or entity making a 

call for telemarketing purposes (or on whose behalf such a call is made) receives a 

request from a residential telephone subscriber not to receive calls from that 

person or entity, the person or entity must record the request and place the 

subscriber's name, if provided, and telephone number on the do-not-call list at the 

time the request is made.

The scope of the “on behalf of” language in this section is unclear (or at least not as clear as it is 

in the 2008 TCPA Order). As a result, the appropriate course was to invoke the doctrine of 

primary jurisdiction so that the parties could refer the question to the FCC for resolution. 

However, since ‘on behalf of” in the 2008 TCPA Order, which is applicable here, clearly means 

“for the benefit of,” there is no reason to invoke the doctrine or stay the case because Honda is 

clearly liable for unconsented calls placed to wireless numbers by FCS that were made to collect 

a debt allegedly owed Honda. See Soppet, 679 F.3d at 642; Martin, 2012 WL 5048854, at *2.

Moreover, even if the Court found that the use of the term “on behalf of” in the 2008 

TCPA Order is ambiguous, a stay is not warranted because Honda failed to articulate a 

reasonable basis for why a referral to the FCC would affect its potential liability under the facts 

of this case. If the Court were to construe the FCC’s rulings in the narrowest possible terms, it is 

clear that the FCC regulations hold a principal liable for calls placed by its agent. Therefore, 

Honda would be liable for calls FCS made in violation of the statute provided that FCS was 

acting as Honda’s agent. The only argument that Honda makes to suggest that FCS did not serve 

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as its agent in pursuing the collection of debts purportedly owed Honda is its conclusory 

assertion that FCS is an independent contractor. 

The federal common law of agency is in accord with the Restatement See Opp v. 

Wheaton Van Lines, Inc., 231 F.3d 1060, 1064 (7th Cir. 2000); Moriarty v. Glueckert Funeral 

Home, Ltd., 155 F.3d 859, 865-66 n. 15 (7th Cir. 1998). The Restatement holds that parties’ 

labels do not control. Restatement (Third) of Agency § 1.02. Generally, an agency relationship 

arises when “one person (a ‘principal’) manifests assent to another person (an “agent’) that the 

agent shall act on the principal’s behalf and subject to the principal’s control, and the agent 

manifests assent or otherwise consents so to act.” Restatement (Third) of Agency §1.01. The 

Restatement also holds that an agency relationship is created when the principal ratifies the act of 

a putative agent. Restatement (Third) of Agency §4.01. Specifically, by ratifying an act, a 

principal triggers the legal consequences that would follow had the act been that of agent acting 

with actual authority. Id. A principal ratifies the act of entering into a transaction when it 

knowingly accepts the benefits of the transaction. Id. at cmt. d.; see also Rosenthal Collins 

Group, LLC v. Trading Technologies International, Inc., No. 05 C 4088, 2011 WL 722467, at 

*13 (N.D. Ill. Feb. 23, 2011) (internal citations omitted). In this case Honda does not dispute, 

and thus concedes, that it received the benefit of the calls placed by FCS as it received the money 

(or a percentage thereof) obtained in connection with these calls. As a result, it seems unlikely 

that Honda would be able to escape liability by arguing that FCS was not its agent.

Indeed, Honda does not directly address the question of whether FCS was its agent. 

Rather, Honda attempts to muddy the waters by arguing that the source of the agency law used to 

determine whether FCS acted as Honda’s agent is unclear and that it should be resolved by the 

FCC. However, this Court sees no basis for why principles of federal agency law would not 

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apply.4 The only potential outstanding question for the FCC is whether the scope of this law 

may be expanded by resorting to state law or other sources. Since FCS appears to have acted as 

Honda’s agent under principles of federal agency law, Honda has failed to present any evidence 

demonstrating that a stay and the invocation of the primary jurisdiction doctrine on this ground 

would materially affect this case.

Denial of the motion is also appropriate in light of the prejudice Jamison would endure if 

a stay is granted. See Nat’l Communs. Assn’n, 46 F.3d at 223 (“The court must also balance the 

advantages of applying the doctrine [of primary jurisdiction] against the potential costs resulting 

from complications and delay in the administrative proceedings.”) (citing Ricci v. Chicago 

Mercantile Exchange, 409 U.S. 289 (1973)). Honda has not yet actually filed any petition with 

the FCC. If the stay were granted, Honda would have to file the petition, the FCC would have to 

accept public comments and then make a determination. The amount of time this process will 

take is inestimable; however, Charvat and Dish Network provide an illustrative example. There,

the parties filed their petitions with the FCC on March 2, 2011 and February 22, 2011 

respectively. See Consumer and Governmental Affairs Bureau Seeks Comment On: The Joint 

Petition Filed Dish Network LLC, et al. for Declaratory Ruling Concerning the Telephone 

Consumer Protection Act (TCPA) Rules, CG Docket No. 11-50, 26 F.C.C. Rcd 5040, 5041 

(April 4, 2011). The FCC issued a notice on April 4, 2011 requesting comments. Id. Comments 

were supposed to be submitted by May 19, 2011. Id. at 5043. Today, over two years since the 

filing of the petitions with the FCC, no ruling or guidance has been provided. It would be safe to 

 4 Honda also takes issue with Jamison’s reliance on Illinois agency law. However, this 

issue is largely irrelevant as “the federal common law of agency is similar to Illinois agency law, 

and both accord with the Restatement of Agency.” ABN AMRO, Inc. v. Capital International, 

Ltd., 595 F. Supp. 2d 805, 821 (N.D. Ill. 2008) (citing Opp v. Wheaton Van Lines, Inc., 231 F.3d 

1060, 1064 (7th Cir. 2000)).

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assume that the parties would face a similar timeframe here. During this entire time, Jamison 

will await his day in court. The Court finds that the potential delay in this case more than 

outweighs any theoretical benefit that might be achieved with an FCC resolution on this issue. 

See Nat’l Communs. Ass’n, 46 F.3d at 225 (holding that a delay of even two years resulting from 

a referral to the FCC “more than outweighs any benefit that might be achieved by having the 

FCC resolve” the dispute.). Accordingly, Honda’s motion for a stay on this ground is denied.

B. The FCC’s Potential Reconsideration of Its Rule that Predictive Dialers 

Qualify as Automatic Telephone Dialing Equipment Does Not Warrant a 

Stay

Honda and FCS have both requested a stay of this matter under the doctrine of primary 

jurisdiction while the FCC considers the question of whether a predictive dialer qualifies as

automatic telephone dialing equipment in In re Petition for Declaratory Ruling Regarding NonTelemarketing Use of Predictive Dialers. However, a stay is not warranted on this ground 

because the FCC has already ruled that a predictive dialer constitutes automatic telephone dialing 

equipment three times. See 2003 TCPA Order, 18 FCC Rcd at 14091, ¶ 131; In the Matter of 

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC 

Rcd 19215, 19215, n.1 (2004) (“2004 TCPA Order”); 2008 TCPA Order, 23 FCC Rcd 559, 566, 

¶ 12.

As described above, the doctrine of primary jurisdiction should only be invoked “if a 

claim requires resolution of an issue of first impression, or of a particularly complicated issue 

that Congress has committed to a regulatory agency, and if protection of the integrity of a 

regulatory scheme dictates preliminary resort to the agency which administers the scheme.” 

Clark, 523 F.3d at 1110 (internal citations and quotations omitted). This is clearly not an issue 

of first impression. Indeed, this is why numerous courts have rejected similar motions to stay 

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based on the primary jurisdiction doctrine. See, e.g., Frydman, 2011 WL 2560221, at *5

(denying motion for stay that requested stay on primary jurisdiction grounds so FCC may decide 

whether debt collectors are exempt from FCC and whether predictive dialers are automated 

dialing systems within the meaning of the term in the TCPA); Tovar v. Midland Credit 

Management, No. 10 C 2600, 2011 WL 1431988, at *4 (S.D. Cal. Apr. 13, 2011) (rejecting 

motion to stay, in part, because FCC has already addressed that “predictive dialers used by debt 

collectors fall within the meaning of autodialers”); Robinson v. Midland Funding, LLC, No. 10 C 

2261, 2011 WL 1434919 (S.D. Cal. Apr. 13, 2011) (same).

Moreover, the fact the FCC issued a public notice requesting comments on a petition that 

could potentially result in a change in the FCC’s position is simply not enough of a reason for 

this Court to stay this action. As described above, courts often weigh the benefits of applying the 

doctrine against the potential litigation costs resulting from complications and delay. See Nat’l 

Communs. Assn’n, 46 F.3d at 223; see also Roberts v. Chemlawn Corp., 716 F. Supp. 364, 365 

(N.D. Ill. 1989); Frydman, 2011 WL 2560221, at *7. A stay will not serve judicial economy 

here. The defendants have not offered any evidence or argument to suggest that if the FCC were 

to change its position that change would apply retroactively to the pending litigation. See Bowen 

v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (holding that agency regulations cannot be 

applied retroactively unless Congress has so authorized the administrative agency and the 

language of the regulations require it); Beller v. Health & Hosp. Corp., 703 F.3d 388, 391 (7th

Cir. 2012). As a result, a change in the FCC’s rules would likely not affect Jamison’s claims. 

See, e.g., Frydman, 2011 WL 2560221, at *7 (declining to refer case to FCC under doctrine of 

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primary jurisdiction because any ruling would likely only be made on a prospective basis).5 As 

described above, the substantial delay resulting from a stay and corresponding impact to the 

Plaintiff will outweigh any potential benefits of waiting for the FCC to rule on this issue again. 

Accordingly, the motions to stay are denied.

II. The Motion for Class Certification

The decision to certify a class action rests within the discretion of the district court. See 

Mira v. Nuclear Measurements Corp., 107 F.3d 466, 471 (7th Cir. 1997). “[T]he party seeking 

class certification assumes the burden of demonstrating that certification is appropriate.” Retired 

Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). Whether a plaintiff 

has met his burden is measured by the “preponderance of the evidence” standard. Messner v. 

Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). 

A party may pursue its claim on behalf of a class only if it can establish that the four 

threshold requirements of Federal Rule of Civil Procedure 23 are met: (1) the class is so 

numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of 

law or fact common the class [commonality]; (3) the claims or defenses of the representative 

 5 The Court is aware that petitioners in the FCC matter asked the FCC to “clarify that 

predictive dialers that are not used for telemarketing purposes...are not ‘automatic telephone 

dialing systems.’” Petition for Dec. Rul., 27 F.C.C. Recd. at 13031. Generally, a statutory or 

regulatory “clarification” does not raise issues regarding retroactivity. See Clay v. Johnson, 264 

F.3d 744, 749 (7th Cir. 2001) (stating that a clarifying rule “can be applied to the case at hand 

just as a judicial determination construing a statute can be applied to the case at hand,” and does 

not raise issues of retroactivity). However, despite how it is styled, the Court fails to see how the 

petition requests anything less than for the FCC to overturn the clear language of the 2008 TCPA 

Order. The 2008 TCPA Order specifically ruled that debt collectors may not use predictive 

dialers to call cellphones unless the wireless phone number was provided by the subscriber in 

connection with the existing debt. See 2008 TCPA Order at 567, ¶ 14. Therefore, the FCC 

petitioners have not really asked for a clarification but for a change in the existing regulations. A 

change in an agency’s existing regulations is presumed to not be retroactive. See Bowen, 488 

U.S. at 208.

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parties are typical of the claims or defenses of the class [typicality]; and (4) the representative 

parties will fairly and adequately protect the interests of the class [adequacy]. Fed R. Civ. P. 

23(a). 

If the moving party meets this initial burden, it must also show that the requirements of 

Rule 23(b)(3) are met. See Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). This 

means that Jamison must show that “questions of law or fact common to the members of the 

class predominate over any questions affecting only individual members [predominance], and 

that a class action is superior to other available methods for fair and efficient adjudication of the 

controversy [superiority].” Fed. R. Civ. P. 23(b)(3). In addition to the Rule 23 requirements, the 

party seeking class certification must provide a workable class definition by showing that the 

members of the class are identifiable. See Oshana, 472 F.3d at 513.

In this case the Defendants have raised eight separate arguments for why the class should 

not be certified. While the Court finds that certain of these arguments are correct and warrant

denial of class certification, the Court disapproves of the Defendants’ shotgun approach to 

objecting to class certification. The Seventh Circuit has advised appellants that presenting too 

many issues is “the equivalent of a laser light show of claims [which] may be so distracting as to 

disturb our vision and confound our analysis.” United States v. Lathrop, 634 F.3d 931, 936 (7th

Cir. 2011); see also Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (discussing the 

deficiencies in the “kitchensink” approach to appellate litigation); Gagan v. Am. Cablevision, 

Inc., 77 F.3d 951, 955 (7th Cir. 1996) (advising appellants to use a rifle approach to briefing 

rather than bringing “their shotgun to Chicago”). This advice is equally applicable to briefs filed 

in opposition to a motion for class certification. By objecting to class certification on so many 

grounds, the Defendants raise a number of weak arguments that will be rejected but that also

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detract from their stronger arguments. The Court encourages the parties to follow the advice of 

the Seventh Circuit and limit their future briefs in this area to their three or four strongest 

arguments. Nevertheless, the Court proceeds and considers the arguments set forth by the parties 

on whether class certification is warranted in this case.

A. The Proposed Class

Jamison seeks to certify a class comprised of those who received unsolicited telephone 

calls to their wireless numbers from the Defendants made to their cellphones. Perhaps realizing 

that there are certain deficiencies in the definition of the class he proposed in his complaint, 

Jamison offers an alternative class definition in his reply in support of his memorandum for class 

certification. The class defined in the complaint consists of: 

(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 American 

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

was called via skip trace methods.

(Doc. 1 at ¶ 32.)

In his reply in support of his memorandum for class certification, Jamison proposed the 

following alternative class definition:

(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 American 

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

was called via skip trace methods and (8) that cellular telephone number does not 

appear in Honda’s business records.

(Doc. 91 at 24.)

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The Seventh Circuit has not addressed the scope of the Court’s discretion to modify a 

class definition at the certification stage. District courts appear to be split on whether to hold a 

plaintiff to the class defined in the complaint. Compare, e.g., Heastie v. Community Bank of 

Greater Peoria, 125 F.R.D. 669, 672 n. 3, 680 n. 10 (N.D. Ill. 1989) (“As the Court observed 

earlier, the class definition proposed in [plaintiff’s] motion for class certification differs from that 

set forth in her complaint. The Court has certified the class as originally proposed, but [plaintiff] 

may file an appropriate motion to amend both her complaint and the class definitions we have set 

forth here...”); Clarke v. Baptist Mem’l Healthcare Corp., 264 F.R.D. 375, 381 (W.D. Tenn. 

2009) (“To accommodate a new proposed class definition, plaintiffs will need to amend the 

complaint.”); Costelo v. Chertoff, 258 F.R.D. 600, 604-05 (C.D. Cal. 2009) (“The Court is bound 

to class definitions provided and, absent an amended complaint, will not consider certification 

beyond it.”), with Savanna Group, Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *2-3

(N.D. Ill. Jan. 4, 2013) (allowing amendment during certification proceedings and noting “[t]hat 

this approach is also consistent with Rule 23, which contemplated the amendment of a class 

certification order prior to judgment”); Bridgeview Health Care Ctr. Ltd. v. Clark, 09 C 5601, 

2011 WL 4628744, at *2 (N.D. Ill. Sept. 30, 2011) (allowing amendment during certification 

proceedings). The Court, however, does not need to decide whether the amendment is 

appropriate because Jamison fails to meet the standards of Rule 23 under either definition.

B. Jamison Satisfies the Numerosity Requirement

Federal Rule of Civil Procedure 23(a)(1) requires that a class be “so numerous that 

joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is generally 

satisfied by identifying a class containing at least 40 members. See, e.g., McCabe v. Crawford & 

Co., 210 F.R.D. 631, 643-44 (N.D. Ill. 2002); cf Pruitt v. City of Chicago, 472 F.3d 925, 926 (7th

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Cir. 2006). Jamison has identified 2,887 telephone numbers that FCS used its dialing system to 

call that were obtained by skip trace methods and which are currently registered as a cellphone 

number. The defendants do not dispute, and thus concede, that it would be impracticable to join 

this many potential plaintiffs in the present action. Accordingly, Jamison has met his burden on 

numerosity.

C. Jamison Establishes Commonality and Typicality

Federal Rule of Civil Procedure 23(a)(2) requires that “questions of law or fact common 

to the class” exist. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting Rosario v. 

Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). “A common nucleus of operative fact is usually 

enough to satisfy” this requirement. Id. Typicality is closely related to commonality. See id. at 

594. It requires “that the claims or defenses of the representative party be typical of the claims 

or defenses of the class.” Muro v. Target Corp., 589 F.3d 485, 492 (7th Cir. 2009) (quoting 

Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000)). This means the 

claim “arises from the same event or practice or course of conduct that gives rise to the claims of 

other class members and...[the] claims are based on the same legal theory.” Oshana, 472 F.3d at 

514 (quoting Rosario, 963 F.2d at 1018.).

Jamison has satisfied both the commonality and typicality requirements. His claim arises 

from the same course of conduct that gives rise to the claims of the other class members and his 

claims are based on the same legal theory. Namely, FCS used an automatic telephone dialing 

system to call Jamison and every other class members’ cellular telephone while undertaking to 

collect debts on behalf of Honda in violation of the TCPA. There are also four common 

questions for the class: (1) whether FCS’ dialer functions as an automatic telephone dialing 

system; (2) whether FCS’ dialer delivers pre-recorded messages; (3) whether the defendants’ 

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conduct was knowing or willful; and (4) whether Honda is liable for FCS’ telephone calls to the 

class members. Defendants do not dispute, and thus concede, that Jamison has met his burden to 

show commonality and typicality. The Court agrees and finds that Jamison has met his burden 

on these elements.

D. Jamison’s Felony Conviction Renders Him Inadequate to Serve as Class 

Representative

Jamison fails to meet his burden in establishing himself to be an adequate representative 

for the class. Federal Rule of Civil Procedure 23(a)(4) requires that the interests of a class be 

fairly and adequately protected by the class representative. The adequacy analysis has two 

components: (1) adequacy of Plaintiffs’ counsel; and (2) adequacy of the named plaintiff to 

protect the interests of the entire class. See Retired Chi. Police Ass’n, 7 F.3d at 598; see also 

Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986). The Seventh Circuit has held 

that a “named plaintiff who has serious credibility problems or who is likely to devote too much 

attention to rebutting an individual defense may not be an adequate class representative.” CE 

Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011). However, 

“[f]or an assault on the class representative’s credibility to succeed, the party mounting the 

assault must demonstrate that there exists admissible evidence so severely undermining 

plaintiff’s credibility that a fact finder might reasonably focus on plaintiff’s credibility, to the 

detriment of the absent class members’ claims.” Id. at 728 (quoting Dubin v. Miller, 132 F.R.D. 

269, 272 (D. Colo. 1990)).

Typically where courts have denied class certification they have done so because the 

class representative generally lacked credibility or the class representative’s credibility was 

severely strained with respect to the claims in the lawsuit. See, e.g., Schleicher v. Wendt, No. 02 

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C 1332, 2009 WL 761157, at *3 (S.D. Ind. Mar. 20, 2009) (Hamilton, J.) (class representative 

who was convicted of criminal fraud was unfit to serve as fiduciary for class that was asserting 

that they were victims of a fraudulent scheme); Kaplan v. Pomerantz, 132 F.R.D. 504, 510 (N.D. 

Ill. 1990) (Rovner, J.) (false testimony during deposition warranted decertification of the class). 

Indeed, numerous courts have found that “a fraud conviction undermines a proposed class 

representative’s adequacy to represent the class.” Schleicher, 2009 WL 761157, at *3; see also 

Xianglin Shi v. Sina Corp., No. 05 C 2154, 2005 WL 1561438 (S.D.N.Y. July 1, 2005); Hartsell 

v. Source Media, No. 98 C 1980, 2003 WL 21245989, at *3 (N.D. Tex. Mar. 31, 2003); In re 

Proxima Corp. Securities Litigation, No. 93 C 1139, 1994 WL 374306 (S.D. Cal. May 3, 1994).

As described above, Jamison pled guilty to a felony charge to access device fraud in 

2008. This is obviously a conviction for fraud, which is sufficient by itself to render Jamison an 

inadequate representative under the case law. This conviction is admissible and may be offered 

to impeach his credibility with a factfinder. See Fed. R. Evid. 609. 6 As a result, there is a strong 

likelihood that the jury will focus on Jamison’s credibility and not the claims of a potential class. 

This risk is heightened by the facts that uniquely pertain to Jamison. Jamison is asking for 

approximately $16,000 in statutory damages. However, there is an open question as to whether 

Jamison or his mother paid the bill for the cellphone that was allegedly called. As a result, 

 6 Defendants also argue that the engagement agreement between Jamison and his counsel 

renders Jamison an inadequate representative for the class. This argument is based on the fact 

that the engagement agreement states that Jamison will not settle the case without the consent of 

his attorneys thereby turning control of the case completely over to his attorneys. However, in 

his deposition Jamison testified that the phrase “without the consent of the attorneys” meant only 

that he needed to confer with his attorneys before entering into a settlement agreement. As the 

Court in In re Ocean Ban found, this a non-issue because any technical inadequacies caused by 

the language in the engagement agreement can easily be cured by amendment. See 06 C 3515, 

2007 WL 1063042, at *6 (N.D. Ill. Apr. 9, 2007). If the Court were to otherwise grant the 

motion for certification, it would require Jamison and his counsel to amend the agreement; 

however, since the motion fails for other reasons, this is a non-issue.

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determining whether Jamison suffered any monetary loss as a result of FCS’ and Honda’s 

alleged conduct will be an issue at trial. The recent fraud conviction combined with the question 

of whether Jamison pays the bill for the cellphone in question could lead the jury to focus on 

Jamison’s credibility as opposed to the claims of absent class members. The 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. It is likely that the jury would hold this 

against the class even though a large percentage of the class has never committed a crime and 

was monetarily damaged by the defendants’ conduct. Accordingly, the Court finds that Jamison 

has failed to establish adequacy by a preponderance of the evidence.

E. Jamison Fails to Satisfy the “Predominance” Requirement of Rule 23(b)(3)

In addition to failing to establish that he can serve as an adequate class representative, 

Jamison fails to satisfy the requirements of Federal Rule of Civil Procedure 23(b)(3). Rule 

23(b)(3) requires a plaintiff to demonstrate that “questions of law or fact common to class 

members predominate over any questions affecting only individual members, and that a class 

action is superior to other available methods for fairly and efficiently adjudicating the 

controversy.” In applying these standards, the Court focuses on “the substantive elements of 

plaintiffs’ cause of action and inquire into the proof necessary for the various elements.” Simer 

v. Rios, 661 F.2d 655, 672 (7th Cir. 1981). Moreover, the Supreme Court has held that “the 

predominance criterion is far more demanding” than “Rule 23(a)’s commonality requirement.” 

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997).

The TCPA generally makes it unlawful to call wireless numbers using an auto-dialer 

without “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). In the debt 

collection context, the FCC has stated that “express consent” is given if a consumer gives a 

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creditor a cellphone number “during the transaction that resulted in the debt owed.” 2008 TCPA 

Order at ¶ 10. The class definitions articulated by Jamison require either that class members’ 

cellphone numbers were obtained by skip trace methods or that class members’ cellphone 

numbers were obtained by skip trace methods and their cellphone numbers are not located in 

Honda’s records.

Here, Honda contends that determining whether any particular class member gave Honda 

his or her cellphone number “during the transaction that resulted in the debt owed” would require 

careful review of Honda’s individual records on a member-by-member basis. In other words, 

Honda argues that the Court would be required to engage in a class-member-specific inquiry to 

determine whether each recipient consented to receiving calls on their cellphone. This, 

according to Honda, would result in individualized questions predominating over common 

questions of law or fact.

There is a split of opinion in TCPA cases on whether issues of individualized consent 

predominate over common questions of law or fact so as to prevent class certification. Compare, 

e.g., Gene & Gene L.L.C. v. BioPay, L.L.C., 541 F.3d 318, 326-29 (5th Cir. 2008) (holding that 

district court abused its discretion in certifying class because the individualized issue of whether 

“fax advertisements were transmitted without the prior express invitation or permission of each 

recipient” prevented plaintiff from “advanc[ing] any viable theory employing generalized proof 

concerning the lack of consent with respect to the class...[which] leads to the conclusion that 

myriad mini-trials cannot be avoided.”); G.M. Sign, Inc. v. Brink’s Mfg. Co., No. 09 C 5528, 

2011 WL 248511, at *8 (N.D. Ill. Jan. 25, 2011) (St. Eve, J.) (holding that individualized issues 

of consent predominated over common issues because defendant set forth specific evidence 

showing large amount of the putative class consented to receive faxes); Versteeg v. Bennett, 

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Deloney & Noyes, P.C., 271 F.R.D. 668, 674 (D. Wyo. 2011) (holding that because “the TCPA 

claims will require extensive individual fact inquiries into whether each individual gave ‘express 

consent’ by providing their wireless number to the creditor during the transaction that resulted in 

the debt owed...individual inquiries [] predominate over the class action”); Kenro, Inc. v. Fax 

Daily, 962 F. Supp. 1162, 1169 (S.D. Ind. 1997) (same), with Balbarin v. North Star, 10 C 1846, 

2011 WL 211013, at *1 (N.D. Ill. Jan. 21, 2011) (Bucklo, J.) (denying motion for 

reconsideration on class certification because the court “tailored the class so that it would capture 

those individuals whose numbers were obtained through defendant’s routine use of third party 

information providers, but exclude individuals who provided their numbers to either defendant or 

the original debtor. The possibility that some putative class members might ultimately be found 

to be outside the class does not preclude class certification.”); G.M. Sign, Inc. v. Franklin Bank, 

S.S.B., No. 06 C 949, 2008 WL 3889950, at *6 (Aug. 20, 2008) (Kocoras, J.) (rejecting 

individualized inquiry into consent as a bar to certification because “[s]uch evidence would be 

within the knowledge of the potential class member, and a party would need a good-faith basis to 

believe that he or she satisfies the class definition before making a representation to this court to 

that effect.”); G.M. Sign, Inc. v. Finish Thompson, Inc., No. 07 C 5953, 2009 WL 2581324, at *6

(N.D. Ill. Aug. 20, 2009) (Kendall, J.) (The defendant “cannot defeat class certification by 

asserting the vague possibility that some of the individuals on the anonymous lists have 

perchance consented to receiving the fax.”).

The rule that can be extracted from these cases is that issues of individualized consent 

predominate when a defendant sets forth specific evidence showing that a significant percentage 

of the putative class consented to receiving calls on their cellphone. However, if the defendants 

fail to set forth this specific evidence and instead only make vague assertions about consent, then 

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individualized issues regarding consent will not predominate over common questions of law or 

fact so as to prevent class certification.

In support of its opposition to class certification Honda provided the affidavit of Melissa 

Metcalf, the Manager of the National Recovery Center for American Honda Finance Corp. 

Metcalf stated that Honda uses a Customer Account Servicing System (“CASS”) to track its 

customers. CASS contains a large volume of information about the particular customer 

relationship such as: (1) the contact information; (2) the make and model of the car; (3) the 

customer’s payment history; (4) account notes memorializing contact with the customer, etc. 

She also attested that when Honda customer service representatives speak to customers, it is 

common for them to obtain the customer’s preferred number to be contacted at and to enter that 

number into the appropriate “phone” field in CASS. CASS has fields for home, work and 

cellphone numbers. However, the customer services representatives also sometimes enter the 

customer’s preferred contact number in the “notes” field and do not enter it in the “phone” field.

However, Honda does not provide information contained in CASS to third-party debt 

collectors like FCS. Rather, Honda provides FCS with the information contained in its Recovery 

Management System database (“RMS”). This because when a customer has not made a payment 

for 120 days, or if there is a balance owed after the car has been repossessed, the debt is 

transferred to the National Recovery Center, which uses the RMS system. CASS feeds 

information into the RMS system; however, this data entry is subject to certain limitations. One

of those limitations is that that RMS does not include a cellphone field. Instead it only has fields 

for work and home numbers. As a result, Honda does not provide cellphone numbers to FCS 

even though a customer may have consented to be called on his or her cellphone. 

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FCS identified 2,887 wireless phone numbers that it called with an automatic dialing 

machine to collect a debt owed to Honda where it had obtained the number via skip trace 

methods. However, when Honda’s IT personnel ran those numbers through the “phone” fields in 

CASS they found that over 1,200 of those numbers appeared in the CASS cellphone field. More 

cellphone numbers may also appear in CASS’s “notes” field; however, Honda has no quick, 

automated way of searching the “notes” field. According to Metcalf, if Honda needed to 

determine whether a person had provided consent to be called on his or her cellphone, Honda 

would have to undertake a labor intensive review of CASS’s notes field, the audit logs as well as 

running the search through the “phone” fields.

As a result, this case is much more similar to Gene & Gene and Brink’s Manufacturing 

than it is to Balbarin or Finish Thompson. Honda has introduced evidence that it elicited consent 

to call a large percentage of the potential class members on their cellphones. Based on this the 

Court would have to conduct a series of mini-trials to determine the population of the class and 

to determine liability. Specifically, the parties would need to scour Honda’s records to determine 

whether a potential class member’s wireless number appears in the CASS cellphone field, 

whether it appears in the notes field or whether it appears in the audit logs. Jamison’s alternative 

class definition does not relieve this problem. While it would eliminate the 1,200 numbers 

identified in the CASS cellphone field, it would still require a determination of whether each 

putative class member’s cellphone number appears anywhere in Honda’s records. Since there is 

no way to employ generalized proof to prove consent, or lack thereof, Jamison has failed to meet 

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his burden under Rule 23(b)(3) because individual issues predominate over common ones. See, 

e.g., Gene & Gene, 541 F.3d at 329; Brinks Manufacturing, 2011 WL 248511, at *8.

7

F. The Class is Not Ascertainable

Finally, while not an explicit requirement under Rule 23, the Seventh Circuit has held 

that a class definition “must be definite enough that the class can be ascertained.” Oshana, 472 

F.3d at 513. “To be ascertainable, a class must be identifiable as a class and membership within 

it must be determined by application of precise, objective criteria.” Bridgeview Health Ctr., Ltd.,

2011 WL 4628744, at *2; see also Pawelczak v. Financial Recovery Services, 286 F.R.D. 381, 

385 (N.D. Ill. 2012). 

As an initial matter, the Court notes that there appears to be substantial overlap between 

the arguments relating to predominance and ascertainability; however, the Court will address the 

arguments as they were framed by the parties. Thus, the Court will address the parties’ 

 7 In its response brief Honda also argued that issues relating to arbitration agreements in 

individual financing contracts as well as issues relating to set-off will predominate over common 

issues. However, in contrast to the specific evidence that it introduced regarding consent, Honda 

did not provide sufficient particularized evidence regarding potential class members who may be

subject to arbitration. Therefore, this potential individualized defense does not predominate over 

common issues. See, e.g., Herkert v. MRC Receivables Corp., 254 F.R.D. 344, 350 (N.D. Ill. 

2008) (stating that the “possibility that some of the putative class members could have 

cardmember agreements with varying terms, including: 1) agreements that are subject to 

differing state laws; 2) agreements containing arbitration clauses; and 3) agreements containing 

or not containing class action waivers” does not preclude certification”); In re Evanston 

Northwestern Healthcare Corp. Antitrust Litig., 268 F.R.D. 56, 66 (N.D. Ill. 2010) (overruled on 

other grounds) (“the possible arbitration of some class members claims does not destroy 

predominance in the case at bar.”). While Honda set forth some evidence demonstrating that 

approximately 75% of the potential class could be subject to a set-off, Honda’s potential 

counterclaims would not predominate over the common questions relating to liability. See, e.g., 

Taylor v. Halsted Fin. Servs., LLC, No. 99 C 2466, 2000 WL 33201925, at *13 (N.D. Ill. Jan. 14, 

2000) (“[T]he specter of potential counterclaims or set offs are not a bar to certification.”); Wells 

v. McDonough, No. 97 C 3288, 1998 WL 160876, at *6 (N.D. Ill. Mar. 31, 1998) (common 

issues predominate regardless of potential individual issues relating to set off because set off 

does not relate to liability).

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arguments relating to class definition in this section although they could just have easily been 

presented as additional potential examples of why individual issues predominate over common 

ones.

The class defined in Jamison’s Complaint is not sufficiently definite to warrant 

certification. Membership in that proposed class only requires FCS or American Honda to have 

called a potential class member’s wireless phone number and to have obtained that number via 

skip trace methods. As was discussed more thoroughly above in the section on predominance, 

such a class could include thousands of individuals who consented to receiving calls on their 

cellphones and thus have no grievance under the TCPA. These people likely gave their wireless 

number to Honda as their preferred contact number when they filled out their credit application; 

however, that number did not get transferred from Honda to FCS because of the limitations in 

the RMS. Therefore, this proposed class is overbroad. See Oshana, 472 F.3d at 513-14 

(affirming denial of class certification on ascertainability grounds as proposed class was 

overbroad because it contained millions of potential members who were not actually deceived 

into purchasing Diet Coke and thus did not have an ICFA claim); Vigus v. Southern Illinois 

Riverboat/Casino Cruises, Inc., 274 F.R.D. 229 (S.D. Ill. 2011) (denying certification of TCPA 

claims on ascertainability grounds and stating that “[w]here a class is overbroad and could 

include a substantial number of people who have no claim under the theory advanced by the 

named plaintiff, the class is not sufficiently definite.”); Pesce v. First Credit Services, No. 11 C 

1379 at Doc. 126 (Gettleman, J.) (decertifying class in precursor case as too broad because 

potential class members included people where “the original creditors’ records show that the 

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

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Jamison, likely realizing this deficiency, proposed an alternative class definition in his 

reply brief. This definition specifically excludes all individuals whose wireless numbers are 

located in Honda’s business records. Honda and FCS still contend that the class cannot be 

ascertained because there is no practicable way to determine whether called numbers were 

cellphone numbers at the time of the call. They also contend that the actual “called party” at the 

time the call was made cannot be determined.

The Defendants’ first argument rests on the hypothesis that some of the telephone 

numbers that FCS called were actually residential telephone numbers at the time of the call but 

were then subsequently ported to cellular telephone service. Therefore, according to the 

Defendants, the class cannot be ascertained because there is no practicable way to determine 

whether the calls were actually placed to cellphones. The Court finds this argument 

unpersuasive. First, after referring to the CNAM database maintained by mobile service 

providers FCS conceded in response to an interrogatory that 2,431 of the 2,887 numbers at issue 

were never issued to a residence or other landline. These numbers have always been assigned as 

wireless numbers. Second, there is no evidence, beyond the defendants’ speculation, that any of 

the remaining 456 numbers were ever ported from a landline to a cellphone. However, Jamison 

can confirm that these numbers were not ported by issuing subpoenas to the top nine wireless 

carriers (which cover 98% of the market) to identify whether the numbers were assigned to their 

cellular service at the time the calls were made. “It is not fatal for a class definition to require 

some inquiry into individual records, as long as the inquiry is not so daunting as to make the 

class definition insufficient.” Heckert, 254 F.R.D. at 348. The Court does not find this potential 

inquiry so daunting as to make the class definition insufficient.

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However, defendants’ second point raises a valid objection to Jamison’s proposed class 

definition. In his reply brief, Jamison argues that the term “called party” refers to the regular 

user of the cellphone. He also argues that the identities of the regular users the cellphone

numbers at issue could be identified through a search of the Defendants’ records or through the 

use of a public record database such as Accurint. However, this ignores what is required by the 

Seventh Circuit in Soppet v. Enhanced Recovery Company. For purposes of the TCPA a 

subscriber is not just the regular user of the cellphone; rather, a subscriber is the person 

subscribing8 to the called number at the time the call is placed. See Soppet, 679 F.3d at 643. A

search of defendants’ records may identify who the defendants intended to call. However, as 

Jamison and Soppet demonstrate, debt collectors do not always call who they intend to call.9 An 

Accurint search may identify the current regular user of a cellphone number. However, 

Jamison’s proposed class covers four years-worth of alleged telephone calls. The current 

subscribers of the cellphone numbers that were called over that period are likely not to be the 

same people as who were the subscribers when the calls were made. 

As a result Jamison’s solutions are insufficient to identify the regular user of a particular 

wireless number at the specific point in time FCS placed calls that were violative of the TCPA. 

This identification is necessary under the Seventh Circuit’s holding in Soppet because only the 

person subscribing to the called number at the time the call was made would have a viable TCPA 

claim. See id. (holding that “called party in § 227(b)(1) means the person subscribing to the 

 8 In Soppet, the Seventh Circuit defined the term “subscriber” to mean “the person who 

pays the bills or needs the line in order to receive other calls.” Soppet, 679 F. 3d at 640.

9 Jamison and the Defendants agree that FCS intended to call Jamison’s sister and not 

Jamison. Soppet involved a suit brought by two cellphone subscribers who were called 

repeatedly by debt collectors seeking to collect a debt from the previous subscriber of those cell 

phone numbers. See Soppet, 679 F.3d at 638-39.

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called number at the time the call is made” and not the intended recipient of the call.); see also 

Vigus, 274 F.R.D. at 236 (stating that to identify a class under the TCPA, “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). Jamison has not

proposed any method by which this can be accomplished. Therefore, Jamison has failed to 

establish by clear and convincing evidence that the class is ascertainable.

CONCLUSION

For the reasons set forth above Honda’s and FCS’s motions for stay are denied. 

Jamison’s motion for class certification is denied. Honda’s motion for leave to file a surreply in 

support of its opposition to the motion for class certification is also denied.10

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: March 28, 2013

 10 On March 12, 2013, Honda filed a motion for leave to file a surreply in support of its 

opposition to the motion for class certification. The basis for the motion was that Jamison raised 

new issues in his reply brief in support of his motion for class certification. At a hearing on 

March 18, 2013, the Court stated it would take the motion for leave under advisement and 

determine whether a surreply is appropriate after reviewing the initial briefs. The decision 

whether to grant a motion for leave to file a surreply is within the discretion of the district court. 

See Johnny Blastoff, Inc. v. L.A. Rams, 188 F.3d 427, 439 (7th Cir. 1999). However, denial of a 

motion for leave is appropriate when the moving party has already had the opportunity to fully 

brief the issues. See, e.g., Almy v. Kickert School Bus Line, No. 8 C 2902, 2013 WL 80367, at 

*15 (N.D. Ill. Jan. 7, 2013); Destiny Health, Inc. v. Conn. Gen. Life Ins. Co., 741 F. Supp. 2d 

901, 911 (N.D. Ill 2010). After reviewing the initial briefs, the Court finds that Honda has had 

the opportunity to fully brief the issues. Accordingly, a surreply is not appropriate here.

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