Jamison v. First Credit Services, Inc.
290 F.R.D. 92
N.D. Ill.2013Background
- Jamison moves to certify a TCPA class against FCS and Honda; Pesce decertified the prior class for breadth and typicality issues.
- FCS and Honda may have used skip-traces to obtain numbers; many numbers were obtained by skip-trace methods for calls to class members’ wireless numbers.
- Honda finances vehicles; FCS collects debts on Honda’s behalf; FCS allegedly called Jamison’s cellphone without consent.
- FCC TCPA rulings establish that creditors may be liable for third-party debt collectors’ calls; agency law theory is contested.
- Jamison has a felony conviction for fraud, raising credibility concerns and potentially undermining adequacy as class representative.
- Honda’s records (CASS and RMS) and evidence suggest consent may be tied to Honda’s records, complicating class-wide liability analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Stay under primary jurisdiction appropriate | Jamison argues court should decide now, not wait on FCC guidance | Honda/FCS urge stay to await FCC interpretation on 'on behalf of' | denied; no stay warranted |
| FCC reconsideration on predictive dialers warrants stay | N/A | FCC already held predictive dialers are ATDS; no stay needed | denied; no stay warranted |
| Predominance under Rule 23(b)(3) | Common questions predominate about dialer use and liability | Individual consent and records issues predominate; mini-trials required | not satisfied; predominance fails |
| Adequacy of class representative | Jamison adequate representative for TCPA claims | Jamison’s felony undermines credibility and adequacy | not adequate; class representation fails |
| Ascertainability of the class | Class definable via skip-trace and records; claimants identifiable | Cannot identify called parties at time of call; overbroad | not ascertainable; class definition defective |
Key Cases Cited
- Gene & Gene L.L.C. v. Bio-Pay, L.L.C., 541 F.3d 318 (5th Cir. 2008) (predominance and lack of consent issues in TCPA class actions arise)
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (primary jurisdiction to resolve contractor liability under TCPA)
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (called party means subscriber at time of call; agency questions in TCPA)