303 F.R.D. 287
N.D. Ill.2014Background
- Plaintiffs Mark Wolfkiel and Kelli Majiros sue Ocwen Loan Servicing and Intersections Insurance Services for unsolicited telemarketing calls in violation of the TCPA.
- Ocwen services plaintiffs’ mortgages; Intersection is alleged to be a telemarketer or joint marketer.
- Wolfkiel’s mortgage was transferred to Ocwen in 2012; he began receiving cellular calls in March 2012 and asked to stop after multiple conversations.
- Majiros, with a Do Not Call Registry-listed landline, began receiving calls in July 2013 about Ocwen’s products; she demanded that calls cease on August 1, 2013.
- Plaintiffs allege Intersection used Ocwen’s customers for joint marketing of Intersection’s products; number given for more info linked to Intersection’s site.
- Court grants Majiros’ dismissal for lack of adequate support for non-EBR liability and dismisses related class allegations; Wolfkiel’s class claims are treated separately for Rule 23 purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Majiros’ TCPA claim with EBR applicability | Majiros argues Ocwen’s EBR does not extend to Intersection's calls. | OCWEN/Intersection contend EBR covers calls made under a seller’s established relationship. | Majiros’ claim dismissed; EBR not shown to cover joint marketer. |
| Whether Intersection was a telemarketer or Ocwen’s partner | Allegations show joint telemarketing and direct concert between Ocwen and Intersection. | Allegations are conclusory and do not show a joint marketing framework. | Allegations insufficient; cannot defeat EBR. |
| Majiros’ Do-Not-Call Registry claim and class | DNC status violated; claims extend to class. | No clear basis to extend DNC beyond Majiros’ specific claim. | Do-Not-Call Registry claim and class dismissed. |
| Rule 23(b)(3) predominance for Revocation Class | Common questions predominate since consent revocation issue can be class-wide. | Individual inquiries would predominate to determine revocation of consent. | Revocation Class fails predominance; dismissed. |
| Rule 23(b)(2) applicability and No-Consent Class | No-Consent Class seeks injunctive-like relief on TCPA claims. | Monetary damages predominate; 23(b)(2) inappropriate. | Rule 23(b)(2) inapplicable; No-Consent Class remains under consideration; not labeled fail-safe. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleading claims)
- Twombly, 550 U.S. 544 (U.S. 2007) (factual pleading must cross the line from conceivable to plausible)
- Justice v. Town of Cicero, 577 F.3d 768 (7th Cir. 2009) (standard for Rule 12(b)(6) in federal pleadings)
- E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773 (7th Cir. 2007) (analytical framework for pleading and evidence in discrimination/context claims)
- Allstate Ins. Co. v. Allstate Insurance Co., 400 F.3d 505 (7th Cir. 2005) (23(b)(2) class action limitations; monetary tail vs. injunction)
- Kartman v. State Farm Mutual Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011) (injunctive relief standing as foundation for subsequent liability determinations)
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) (predominance and class definitional concerns; mini-trials guidance)
- Hinman v. M&M Rental Center, 545 F.Supp.2d 802 (N.D. Ill. 2008) (consent and leads list as basis for class-wide consent issues)
- Saf-T-Gard Int'l v. Wagener Equities, 251 F.R.D. 312 (N.D. Ill. 2008) (class identification via objective criteria and conduct)
- Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006) (definition and viability of class certification standards)
- Kasalo v. Harris & Harris, 656 F.3d 557 (7th Cir. 2011) (early denial of class certification when facially defective)