Buonomo v. Optimum Outcomes, Inc.
301 F.R.D. 292
N.D. Ill.2014Background
- Plaintiff Vince Buonomo alleges Optimum Outcomes placed numerous autodialed and prerecorded calls to his cell phone seeking a debtor with whom he had no relationship; he notified Optimum in Nov. 2012 that it had the wrong number but calls continued.
- Buonomo asserts TCPA and FDCPA claims and seeks to represent a class of persons called on their cell phones by Optimum using an ATDS or prerecorded voice where the number was not obtained directly from the called party; he also proposed a subclass of persons who notified Optimum it was a wrong number (later narrowed).
- Optimum moved to strike the class allegations under Rule 23, arguing the class is overbroad, fails typicality, commonality, predominance, and ascertainability, and that a Rule 23(b)(2) injunctive class is improper because plaintiff primarily seeks money damages.
- The court applied Rule 23 procedures at the pleading stage, recognizing that striking class claims is appropriate only where allegations are facially deficient; factual disputes suitable for discovery should not be resolved at this stage.
- The court held the proposed class was overbroad because it mixed "wrong parties" (reassigned numbers) with actual debtors whose numbers may have been obtained with consent, striking the (b)(2) injunctive class allegations as waived by Buonomo and ordering amendment of the class definition to address overbreadth.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Typicality of proposed class | Buonomo: class members share the same "wrong-party" TCPA theory | Optimum: class includes actual debtors (not just wrong parties), so Buonomo's claims are not typical | Court: class is overbroad; typicality fails as pleaded — plaintiff must narrow class to wrong-party claimants |
| Commonality / Predominance (consent) | Buonomo: common questions exist; discovery needed to assess consent issues | Optimum: individualized consent issues will predominate and defeat class treatment | Court: premature to resolve; defendant offered no class-discovery evidence and blocked discovery, so commonality/predominance not resolved now |
| Ascertainability | Buonomo: class can be defined by objective criteria tied to defendant's conduct | Optimum: identifying wrong-party claimants requires individualized inquiries | Court: cannot decide at pleading stage; ascertainability challenge is premature given need for discovery |
| Rule 23(b)(2) injunctive class | Buonomo: sought (b)(2) relief among other remedies | Optimum: (b)(2) improper because plaintiff seeks primarily money damages | Court: Buonomo failed to oppose; (b)(2) allegations stricken as waived |
Key Cases Cited
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (describes TCPA "wrong-party" theory and defines the called party as the current subscriber)
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) (class definition refinement may cure overbreadth; class definition is an "art")
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (commonality requires common answers that will drive resolution of the litigation)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (predominance requires that common issues be sufficiently cohesive to warrant class adjudication)
- Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006) (Seventh Circuit requires ascertainability of class membership)