IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL WOOD,

 

 Plaintiff,

 

 v.

CAPITAL VISION SERVICES, LLC, 

MYEYEDR. OPTOMETRISTS, LLC, 

MYEYEDR. OPTOMETRY OF 

ILLINOIS, LCC,

 Defendants.

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No. 20 C 4584

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Wood brings this suit on behalf of himself and a putative class 

against Defendants Capital Vision Services, LLC, MyEyeDr. Optometrists, LLC, and 

MyEyeDr. Optometry of Illinois, LLC (collectively, “Defendants”) alleging violation of 

the Telephone Consumer Protection Act (“TCPA”). Defendants move to strike Wood’s 

class allegations. [40]. As discussed further below, that motion is denied.

BACKGROUND

Plaintiff Wood alleges that on July 14, 2020, he received a prerecorded 

voicemail message from the Defendants. Plaintiff contends he did not consent to 

receive that voicemail. (Dkt. 34, Second Amended Complaint ¶¶ 16-19, 24). 

Defendants may have obtained Plaintiff’s cell phone number when he purchased nonprescription sunglasses in 2017, but Plaintiff alleges that any consent given at that 

time was not for the type of call and voicemail he received from Defendants in 2020. 

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Plaintiff subsequently brought suit under the Telephone Consumer Protection Act 

(“TCPA”) on behalf of himself and a putative class.

Plaintiff proposes two classes in his Second Amended Complaint:

Telemarketing Class: All persons in the United States: (1) 

whose cellular telephone number, on or after five years prior to 

the filing of this action; (2) CVS, MyEyeDr., MyEyeDr.-IL, called 

or caused to be called, using a prerecorded voice message; (3) 

where such message encouraged the recipient to purchase eye 

exam services from Defendants; (4) where recipient had not 

previously received an eye exam from CVS, MyEyeDr. or 

MyEyeDr.-IL. 

Robocall Class: All persons in the United States: (1) whose 

cellular telephone number, on or after five years prior to the 

filing of this action; (2) CVS, MyEyeDr., MyEyeDr.-IL or 

someone on their behalf called using the same or similar 

artificial or prerecorded voice used to call Plaintiff; (3) where 

such calling occurred without the person’s permission.

SAC ¶ 34.

Defendants now move to strike the class allegations on the grounds that (1) 

Plaintiff is an atypical and inadequate class representative; (2) the class is overbroad; 

(3) individualized inquiries predominate over common issues of fact or law; (4) 

Plaintiff’s Robocall Class is an impermissible failsafe class; and (5) the Court lacks 

subject matter jurisdiction over at least some class members. 

LEGAL STANDARD

Consistent with Rule 23, “a court may deny class certification even before the

plaintiff files a motion requesting certification.” Kasalo v. Harris & Harris, Ltd., 656

F.3d 557, 563 (7th Cir. 2011) Courts in this district have generally recognized that

striking class allegations on the pleadings is permitted, but only “when it is apparent

from the complaint that class certification is inappropriate.” See, e.g., Rysewyk v.

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Sears Holding Corp., No. 15 CV 4519, 2015 WL 9259886, at *7 (N.D. Ill. Dec. 18,

2015). This approach accords with Rule 23, which stipulates that the court must

determine whether to certify the case as a class action “[a]t an early practicable

time.” See Kasalo, 656 F.3d at 563 (7th Cir. 2011). However, striking class allegations

at the pleadings stage may only occur “when the pleadings are facially defective and

definitively establish that a class action cannot be maintained.” Murdock-Alexander

v. Tempsnow Employment, No. 16-cv-5182, 2016 WL 6833961, at *3-4 (N.D. Ill. Nov.

21, 2016). If issues concerning class certification are factual, requiring discovery to 

determine whether certification is appropriate, a motion to strike class allegations at 

the pleading stage is premature. Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 

292, 295 (N.D. Ill. 2014). Unlike with a motion for class certification, on a motion to 

strike class allegations, the defendant, as the movant, bears the burden of 

persuasion. Rysewyk v. Sears Holdings Corp., No. 15 CV 4519, 2015 WL 9259886, at 

*8 (N.D. Ill. Dec. 18, 2015).

Class certification is appropriate where a plaintiff can meet the four 

requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy of 

representation. Fed. R. Civ. P. 23(a). Additionally, a plaintiff must also satisfy one of 

the three subsections of Rule 23(b). Fed. R. Civ. P. 23(b); Oshana v. Coca-Cola Co., 

472 F.3d 506, 513 (7th Cir. 2006). 

DISCUSSION

I. Adequacy and Typicality 

Rule 23(a) requires Plaintiff to demonstrate that “the claims or defenses of the 

representative parties are typical of the claims or defenses of the class” and that “the 

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representative parties will fairly and adequately protect the interests of the class.” 

Fed. R. Civ. P. 23(a)(3)-(4). Defendants argue that because Plaintiff’s claim is 

“whether MyEyeDr.’s sole message fell within the scope of consent that Plaintiff 

provided during his earlier transaction” that the circumstances surrounding his claim 

are too individualized to support adequacy and typicality. (Dkt. 40 at 6). 

A claim is typical if it “arises from the same event or practice or course of 

conduct that gives rise to the claims of other class members and ... her claims are 

based on the same legal theory.” Even though some factual variations may not defeat 

typicality, the requirement is meant to ensure that the named representative's claims 

“‘have the same essential characteristics as the claims of the class at large.’” Oshana 

v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (internal citations omitted). 

Defendants rely on Tillman v. Hertz Corp., a case that is procedurally and 

factually distinct. 2019 WL 3231377 (N.D. Ill. Jul. 18, 2019). The court in Tillman

identified—after discovery and summary judgment briefing had taken place—that 

numerous contested fasts destroyed any notion of typicality and adequacy. These 

facts included the type of executed contract, the type of calls made by those 

defendants, and whether and how consent was revoked. While there are some 

questions surrounding Plaintiff’s consent in this case,1 no discovery has taken place 

and the class itself does not require any issue of consent to be decided on its face 

(unlike the class definition in Tillman). And while Tillman had not conducted classspecific discovery, there had been discovery for summary judgment. Here, Plaintiff is 

1 Defendants’ laundry list of “contested facts” boils down to a question of consent. (Dkt. 46 at 

4). 

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alleging that he received a voicemail encouraging him to purchase eye exam services 

and had not previously received an exam from Defendants. Typicality under Rule 

23(a)(3) “should be determined with reference to the company's actions, not with 

respect to particularized defenses it might have against certain class members,” CE

Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 725 (7th Cir. 2011). The 

class definition does not differentiate between putative class members who may have 

provided consent to Defendants (in a different context) and those who have not. The 

fact that Plaintiff may have provided some consent, and what that consent entailed, 

is not fatal to his class allegations at this stage of the proceedings. See, e.g., Gehrich 

v. Chase Bank USA, N.A., 316 F.R.D. 215, 225 (N.D. Ill. 2016) (“All class members 

allegedly received calls or text messages... in violation of the TCPA, and that is 

enough to satisfy the typicality requirement.”) Because the issues surrounding class 

certification are factual, striking the class allegations prior to class-wide discovery on 

these grounds would be premature. 

II. Overbreadth

Next, Defendants contend that if Plaintiff’s individual TCPA claim requires a 

fact-based inquiry, then a similar fact-based inquiry is required for each and every 

putative class member. Defendants rely on the existence of the Healthcare 

Treatment Exemption and an “emergency purposes” exception to TCPA liability to 

argue that the class definition is facially overbroad. (Dkt. 40 at 8-9) (citing In the 

Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 

F.C.C. Rcd. 7961, 8031-32 ¶¶ 143-48 (July 10, 2015) and 47 C.F.R. § 64.1200(a)(1).)

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Defendants have not identified any authority that supports striking class 

allegations where the existence of exceptions to TCPA liability might attach and have 

further not identified how many—if any—individuals might fall within these 

exceptions. This is precisely the type of question that may be addressed more fully

during class discovery.2 At this stage, with no information about the applicability of 

these exceptions to the putative class, it would be premature and speculative to strike 

the allegations. See Messner v. Northshore U. HealthSystem, 669 F.3d 802, 825 (7th 

Cir. 2012) (“[A] class should not be certified if it is apparent that it contains a great 

many persons who have suffered no injury at the hands of the defendant...There is 

no precise measure for ‘a great many.’ Such determinations are a matter of degree 

and will turn on the facts as they appear from case to case.”)

III. Predominance 

Defendants also ask that the class allegations be stricken because determining 

the application of certain health care exceptions to the TCPA and other issues of 

consent would predominate over the common issues of law or fact. “Predominance is 

similar to commonality but requires a ‘far more demanding’ inquiry.” Buonomo v. 

Optimum Outcomes, Inc., 301 F.R.D. 292. Predominance is a qualitative decision 

about whether common questions represent a significant aspect of a case. Messner v. 

2 In Vann v. Dolly, 3030 WL 902981 (N.D. Ill. Feb. 25, 2020), the court found class allegations 

to be facially overbroad because the class definition included “all individuals who were 

employed” during a timeframe, while the plaintiffs alleged harms suffered by those employed 

as “helpers.” Id. at *5. That is the type of facial overbreadth properly considered on a motion 

to strike class allegations. Here, that there may be some individuals who fit into the 

exceptions or exemptions, there is no evidence of that (yet) and so the claim is not facially 

overbroad. 

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Northshore Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012). It is true that the 

scope of consent may be a fact-intensive, particularized inquiry that may preclude 

class certification. See, e.g., Hudson v. Ralph Lauren Corp., 385 F. Supp. 3d 639, 642 

(N.D. Ill. 2019); Khalil v. McGrath Colosimo, 2018 WL 11216391 (N.D. Ill. Aug. 22, 

2018) (“The scope of consent is a fact-intensive inquiry.”); Oliver v. TTC-Ameridial, 

LLC, 2018 WL 1255017, *7 (N.D. Ill. March 12, 2018) (“[U]nder the TCPA, the scope 

of a person’s consent to receive calls depends upon the context in which consent was 

given.”)

Defendants argue that the Healthcare Treatment Exemption and “emergency 

purposes” exception to the TCPA require individualized inquiries that preclude class 

treatment. (Dkt. 40 at 10-11). Defendants identify specific evidence that might be 

required including whether Defendants’ message was covered, whether the potential 

class member provided their phone number to Defendants, whether the Defendants

stated its contact information, whether the message was specifically concise, and 

whether the Defendants provided an opt-out mechanism. (Id.) These questions may 

rise to the level of a fact-specific inquiry that precludes certification, but at present

are merely speculative as to the amount of evidence that will be required to determine 

class membership. However, Defendants have not presented any specific evidence 

that these issues of individualized consent will predominate. See Jamison v. First 

Credit Services, Inc. 290 F.R.D. 92, 106-107 (N.D. Ill. 2013) (“The rule [] 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 

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on their cellphones.”); see also, e.g., 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.”)

Without “specific evidence—as opposed to mere speculation—that [a] 

purportedly individualized issue predominates over common issues,” the court cannot 

conclude that individualized factual questions predominate at this stage. See, e.g.,

Heard v. Becton, Dickinson & Co., 524 F. Supp. 3d 831, 850 (N.D. Ill. 2021). 

Accordingly, the Court denies Defendants’ motion to strike the class allegations based 

on predominance. 

IV. Fail-Safe Class

Defendants argue that the “Robocall Class” pled by Wood is an impermissible 

fail-safe class because it requires class members to have been contacted “without the 

person’s permission.” (SAC ¶ 34.) A fail-safe class “is defined so that whether a person 

qualifies as a member depends on whether the person has a valid claim.” Messner v. 

Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). “Such a class 

definition is improper because a class member either wins or, by virtue of losing, is 

defined out of the class and is therefore not bound by the judgment.” Id; see also 

Mauer v. Am. Intercontinental Univ., Inc., 2016 WL 4698665, *3 (N.D. Ill. Sept. 8, 

2016) (finding class in TCPA action to be impermissible fail safe because “whether an 

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individual qualifies as a class member turns on consent and so membership in the 

class depends on the presence of a valid claim against Defendants.”)

Plaintiff concedes that the Robocall Class “may be conditioned on liability 

because it only includes individuals called ‘without permission.’” (Opp. at 7-8) but

asks that he be permitted to refine the class definition instead of having the 

allegations stricken. Courts in this district have generally allowed a fail-safe class to 

be refined when considered on an early motion to strike. See, e.g., 2016 WL 1182001

at *8 (N.D. Ill. Mar. 28, 2016) (declining to strike fail-safe class definition where 

plaintiffs had not yet moved to certify the purported class and instead considering 

the class definition “a placeholder for plaintiffs to seek certification if it becomes 

appropriate to do so”); Wolfkiel v. Intersections Ins. Servs., 303 F.R.D. 287, 294 (N.D. 

Ill. 2014) (possible existence of fail-safe class was not a basis to strike class 

allegations prior to certification stage). Therefore, Plaintiff may amend his class 

definition, either at this time or when he moves for class certification, to rectify the 

fail-safe problem identified here. See Chapman v. First Index, Inc., 796 F.3d 783, 785

(7th Cir. 2015) (noting that Rule 15 requirements for amendment of pleadings are 

inapplicable to class definitions but that it was not an abuse of discretion for district 

court to require plaintiffs to propose class definition at an early practicable time and 

not attempt to revise definition over four years into the litigation). 

V. Subject Matter Jurisdiction

Finally, Defendants contend that the Court is deprived of subject matter 

jurisdiction for nearly all of the proposed classes’ claims and ask that the claims be 

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stricken on that basis. (Dkt. 40 at 12-14). This argument rests on the recent decision 

in Barr v. American Association of Political Consultants, Inc. 140 S. Ct. 2335 (2020), 

where the Supreme Court held in a plurality that the TCPA’s automated-call ban was 

an unconstitutional content-based restriction when combined with the governmentdebt exception (which previously had allowed government debt collectors to violate 

the ban). The government debt exception was severed and the ban survived. The 

question is then whether the automated call ban’s unconstitutionality precludes 

subject matter jurisdiction over any TCPA claim for automated calls made between 

2015 (when the ban was enacted) and July 2020 (when the government debt exception 

was severed). The Seventh Circuit has not yet decided this issue.

As Plaintiff points out, Justice Kavanaugh, who authored the principal 

plurality opinion in AAPC, anticipated the argument now made by Defendants and 

suggested that the invalidity of the government debt exception “does not negate the 

liability of parties who made robocalls covered by the robocall restriction.” AAPC at 

2355 n.12. This comment suggests that the robocall provision remained in full force 

between 2015 to 2020, rather than creating a five-year escape hatch for robocallers 

to dodge liability. While dicta, it is persuasive. 

This issue was recently considered by the Sixth Circuit in Lindenbaum v. 

Realgy, LLC, 13 F.4th 524 (6th Cir. 2021). There, the district court found3 that there 

was no subject matter jurisdiction because the statute was unconstitutional at the 

time of the alleged violations. Reversing, the Sixth Circuit explained that severance 

3 Defendants cited the district court’s opinion (N.D. Ohio) in support of their position prior 

to the Sixth Circuit’s decision. See Dkt. 40 at 13.

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is not a remedy, so a legislative act would be required in order for application to be 

prospective only:

[T]he Court recognized only that the Constitution had 

“automatically displace[d]” the government-debt-collector 

exception from the start, then interpreted what the statute 

has always meant in its absence . . . That legal 

determination applies retroactively.

Lindenbaum, 13 F.4th at 530 (internal citations omitted). The majority of district 

courts considering this issue have agreed with the Sixth Circuit. See Marshall v.

Grubhub, Inc., 2021 WL 4401496, at *3 n.3 (N.D. Ill. Sept. 27, 2021) (collecting cases); 

Poonja v. Kelly Servs., Inc., No. 20-CV-4388, 2021 WL 4459526, at *4 (N.D. Ill. Sept. 

29, 2021). The Court follows the majority view that the robocall provision remained

constitutional during the relevant period and thus the Court is not deprived of subject 

matter jurisdiction over prospective class members on that basis.

CONCLUSION

For the reasons given herein, Defendants’ Motion to Strike Class Allegations 

[40] is denied.

____________________________________

Virginia M. Kendall

United States District Judge

Date: November 12, 2021

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