Last week, in the TCPA case captioned as Birchmeier, et al. v. Caribbean Cruise Line, Inc., Case No. 12 C 4069 (N.D. Ill.), a federal district judge in the Northern District of Illinois certified two nationwide classes of individuals who received robocalls offering a free cruise trip for participation in a political survey. The plaintiffs allege that these robocalls violated the TCPA. Between August 2011 and August 2012, millions of these calls were made, and Plaintiffs received during discovery, records of approximately 930,000 telephone numbers that receive the calls. The defendants in this case are Caribbean Cruise Line, the Berkley Group, Vacation Ownership Marketing Tours, and companies collectively referred to as the Economic Strategy Group Defendants.

In opposition to plaintiffs’ motion for class certification, defendants made several arguments as to why class certification should be denied: (a) the class is not ascertainable because there is no practical way to identified the subscriber of the number that was called during the 2011/2012 period, (b) each class member had different caller experiences, dependent on: the length of call, whether caller took the survey, and type of phone plans, (c) none of the named plaintiffs appeared in the list of the approximately 930,000 numbers who unquestionably received a call from the defendants, and (d) liability and damages depend on individualized proof. The court was unpersuaded by these arguments and held that plaintiffs met the requirements for class certification. In the opinion, the court held that “plaintiffs need not establish that the people who received the calls at the numbers on the list of 930,000 were the actual subscribers; the fact that they received calls is enough to permit them to sue.” Further, limiting the class membership to only those who appear in the defendants records is “fundamentally unfair”. Individuals, like the named plaintiffs, who can prove with their own records that they received one of these calls should be permitted to join the class. There would be no need for individualized inquiries because defendants had a uniform policy and the list of 930,000 numbers unquestionably received a call from defendants.

This decision demonstrates that the entire class membership does not need to be definitively determined for class certification so long as there are methods to establish membership. This is an incredible result of the plaintiffs. Scott Rauscher of Loevy & Loevy and Jay Edelson of Edelson PC have been appointed class counsel.
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