In Buonomo v. Optimum Outcomes, Inc., No. 13-cv-5274 (N.D. Ill. March 17, 2014), the United States District Court for the Northern District of Illinois granted a partial motion to strike class action allegations alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and Fair Debt Collection Practices Act (“FDCPA”).
The plaintiff, Vince Buonomo, alleged that the defendant, Optimum Outcomes, had called his cell phone without authorization in an attempt to collect a debt owed by a third-party debtor (that was not Buonomo). Put another way, he alleged that Optimum had called the wrong number. The plaintiff sought to represent a class of similarly situated individuals that had been contacted by Optimum through a prerecorded or artificial voice on their cell phones in an attempt to collect on a debt. But the plaintiff’s putative class included not only those who Optimum had inadvertently contacted (i.e., where Optimum called the wrong number) but also actual debtors who Optimum had contacted.
Optimum filed a motion to strike the class allegations, arguing, inter alia, that the plaintiff’s claim (that Optimum had called the wrong number when it contacted him) rendered him atypical of actual debtors that Optimum had contacted. The District Court agreed, recognizing that there is a distinction in TCPA cases between cases where a defendant called the wrong party versus whether a defendant had consent when contacting the intended recipient. Because Buonomo was not the intended recipient of Optimum’s calls, the Court held that his claim lacked the “essential characteristics” as the claims of actual debtors that were called, and therefore limited the class to only those who were the “wrong party” that were contacted.
Optimum also argued that the remaining class allegations should be stricken as the remaining putative class members were not ascertainable, because determining whether a particular individual that was called was a “wrong party” would require individualized fact-finding for each class member. The Court, however, held that this argument was premature and it would give that plaintiff time to conduct class discovery and resolve the issue at the time of addressing class certification.