258 F. Supp. 3d 893
N.D. Ill.2017Background
- Plaintiffs Snyder and Mansanarez sued Ocwen under the TCPA (autodialed/artificial-voice calls to cellphones without consent) and sought a preliminary injunction and limited Rule 23(b)(2) class for injunctive relief; FDCPA claims are not at issue here.
- Plaintiffs allege Ocwen used Aspect autodialer, skip tracing, and ANI capture to obtain cellphone numbers and continued calling after requests to stop; other declarants reported ongoing calls after plaintiffs were picked off.
- Ocwen services ~1.4 million mortgages, uses REALServicing database, and has changed practices over time (April 2014: cellphone ID checks; Dec. 2014: added consent flag; Sept. 2016: changed revocation handling; Dec. 2016: set skip-traced numbers to no-consent).
- Disputed factual problems: REALServicing historically lacked a field identifying how a number was obtained; consent flags were inconsistently set/updated; Ocwen sometimes required extra verification before honoring revocations.
- Court held an evidentiary hearing, found plaintiffs have standing to pursue class injunctive relief under the Gerstein/Sosna exception, certified a limited 23(b)(2) class for injunction purposes, and granted at least some preliminary relief in principle but deferred final class certification and injunction pending further submissions from Ocwen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for injunctive relief | Plaintiffs (Snyder/Mansanarez) can represent a class because other class members face ongoing calls; named plaintiffs had live claims when filed so mootness exception applies | Ocwen: named plaintiffs’ individual claims are moot so no standing to seek injunction for class | Court: Named plaintiffs met live-claim requirement at filing; class-related exception to mootness applies; adequate standing to pursue class injunctive relief |
| Rule 23(b)(2) certification of limited class | The class shares common course of conduct (autodialed calls to cell numbers obtained by skip tracing/ANI or after revoked consent); injunctive relief fits classwide | Ocwen: proposed class is multiple distinct subclasses and may be a fail-safe class; individualized consent issues preclude certification | Court: Declined to subdivide; class meets numerosity, commonality, typicality, adequacy, and (b)(2) because Ocwen acted on grounds applicable generally; will defer final order pending remedial details |
| Standard for preliminary injunction | Plaintiffs: statutory TCPA language allows injunction without showing irreparable harm | Ocwen: traditional equitable four-factor test applies (including irreparable harm) | Court: Applied traditional equitable test; TCPA does not mandate dispensing with irreparable-harm requirement |
| Issuance and scope of preliminary injunction | Plaintiffs seek to block Aspect autodialer calls to cell numbers obtained via skip tracing/ANI and calls after revocation; seek suspension of reminder-call program and monitoring | Ocwen: injunction would impose severe operational burden, harm investors and borrowers; its post-2016 changes largely address problems | Held: Plaintiffs showed better-than-negligible likelihood of success, inadequate remedy at law (Ocwen’s limited ability to pay statutory damages), and irreparable harm for class; balance of harms requires tailoring and further factual work — Court deferred final injunctive order and directed Ocwen to produce feasibility reports and documentation before entry |
Key Cases Cited
- Turnell v. Centi-Mark Corp., 796 F.3d 656 (7th Cir. 2015) (preliminary injunctions are equitable remedies requiring clear need)
- Gerstein v. Pugh, 420 U.S. 103 (1975) (class-action mootness exception when injury is transitory at individual level)
- Sosna v. Iowa, 419 U.S. 393 (1975) (named plaintiff must have live claim when suit filed to represent class)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (commonality requirement for class certification)
- Phillips v. Sheriff of Cook Cty., 828 F.3d 541 (7th Cir. 2016) (framework for Rule 23 analysis)
- CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011) (typicality and adequacy may merge in class representative analysis)
- Bedrossian v. Nw. Mem'l Hosp., 409 F.3d 840 (7th Cir. 2005) (statute must clearly mandate injunctive standard to displace traditional equitable balancing)
- Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079 (7th Cir. 2008) (likelihood of success for preliminary injunction requires better-than-negligible chance)
- Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1988) (voluntary cessation by defendant does not moot claim absent heavy showing)