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Melissa Thrasher-Lyon, On Behalf of Herself and A Class of Others v. Ccs Commercial LLC

November 2, 2012


The opinion of the court was delivered by: Judge John J. Tharp, Jr.


Defendant CCS Commercial LLC ("CCS") moves the Court to reconsider its ruling of September 4, 2012, denying CCS's motion for partial summary judgment and granting the named plaintiff's.*fn1 CCS alternatively requests that the Court certify its decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Named plaintiff Melissa Thrasher-Lyon opposes both motions. For the reasons that follow, the Court denies the motion to reconsider and grants the motion to certify.

A. Motion to Reconsider

The September 4 decision did not terminate the action and therefore is "subject to revision at any time." Fed. R. Civ. P. 54(b); see Galvan v. Norberg, 678 F.3d 581, 586-87 (7th Cir. 2012). The Court has broad discretion-"sweeping authority"-to revisit its interlocutory decisions, subject to the caveat that issues already decided should not be revised without good reason. Galvan, 678 F.3d at 587 & n.3. Here, CCS argues that the Court should reconsider because its decision was based upon errors of law and perhaps a misapprehension of CCS's arguments. The Court addresses the arguments in turn.

First, CCS contends that the Court failed to address a 1992 FCC Order that held that giving out a telephone number is consent to be contacted. In Re Rules & Regulations Implementing the TCPA of 1991, 7 FCCR 8752, 1992 WL 690928, at **11 (Oct. 16, 1992) (explaining that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary"). This argument fails for at least two reasons. First, the Court cited, and recited the holding of, the 1992 Order in its September 4 ruling. Memorandum Opinion and Order, Dkt. 86 at 6. The decision assumes, consistent with the 1992 Order, that disseminating one's contact information to others is agreement to be contacted by those individuals. Indeed, the Court made it clear Thrasher-Lyon consented to receive telephone calls from the individuals to whom she gave her contact information. Id. at 9 ("Agreeing to be contacted by telephone, which Thrasher-Lyon effectively did when she gave out her number, is much different than expressly consenting to be robo-called") (emphasis added). CCS is really just taking issue with the Court's distinction between consent to be contacted and consent to be contacted through the use equipment regulated by the TCPA. However, as the opinion explains, that distinction is required by the plain language of the TCPA, unless the FCC's creditor-debtor rule applies. Here, it does not. Another problem with CCS's reliance on the 1992 Order as independent grounds for a favorable decision is that Thrasher-Lyon never gave her telephone number (and thus, her consent) to Farmers, in whose shoes CCS now stands. She gave the number at the scene of the crash to the driver and a police officer; Farmers obtained the phone number from one of them, not from Thrasher-Lyon. She merely confirmed the contact information when Farmers called her with contact information it obtained from a third party. CCS is therefore off-base both in suggesting that the Court failed to acknowledge the 1992 Order and that it clearly requires judgment for CCS.

CCS's second argument, that the Court violated the Hobbs Act, also relies on the demonstrably incorrect statement that the Court somehow "ignored" or failed to heed the 1992 Order. As explained above, the summary-judgment decision in fact relies upon the 1992 Order's statement that giving out contact information is consent to be contacted. The Court simply declined to equate consent to be contacted generally with consent to the use of the equipment expressly prohibited by the TCPA, unless there is a creditor-debtor relationship established at the time the equipment is used. Again, a more careful reading of the Court's opinion would have shown CCS that the Court acknowledged the binding nature of both the 2008 and 1992 FCC Orders. See Mem. Op. & Order, Dkt. 86, at 6 ("[T]he Court rejects CCS's contention that this case is squarely addressed by FCC rulings that this Court cannot revisit pursuant to the Hobbs Act") (emphasis added). The Court agreed that it lacks jurisdiction to modify or reject those rulings, but disagreed with CCS that the rulings required judgment in its favor.

CCS's third argument, that the Court erroneously determined that Farmers (and therefore CCS) was not a creditor within the meaning of the 2008 FCC Order, does not point to any error of law or fact. CCS simply expresses disagreement with the Court's application of the creditor-debtor rule. CCS presents nothing new that it didn't argue already in its summary-judgment briefs, and the Court declines to revisit those arguments again.

Finally, CCS advises that the Court "may compel the parties to ask the FCC to clarify the 2008 Order." The Court is not inclined to do so. In the Court's view, the 2008 Order requires no clarification: it applies to communications between creditors and debtors. Here, there was no "debt" or "transaction" as those terms are used in the 2008 Order or the many cases that the Court cited. See Mem. Op. & Order, Dkt. 86 at 7-8. As the Court explained, Thrasher-Lyon's conduct in giving her number to third parties in connection with the accident did not reasonably evidence consent to be contacted by Farmers or its successor, CCS, through the use of autodialers and prerecorded messages.

For these reasons, the Court will not reverse its ruling on the parties' cross-motions for partial summary judgment. The motion to reconsider is denied.

B. Motion to Certify for Interlocutory Appeal

Turning now to CCS's alternative request, an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) can be taken when the district court and the appellate court agree that "the ruling decides a controlling issue of law and immediate resolution of the issue would expedite the litigation." In re High Fructose Corn Syrup Antitrust Litig., 361 F.3d 439, 440 (7th Cir. 2004). CCS's somewhat cursory motion argues that these criteria are met, while Thrasher-Lyon insists that they are not.

On the first question, the Court concludes that its ruling decided two issues of law that are controlling: the interpretation of "prior express consent" and the scope of the creditor-debtor rule. These surely are pure "questions of law." See Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d 674, 676 (7th Cir. 2000) ("'question of law' in section 1292(b) refers "to a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine rather than to whether the party opposing summary judgment had raised a genuine issue of material fact"). A harder question is whether they are "controlling." "A question of law may be deemed 'controlling' if its resolution is quite likely to affect the further course of the litigation, even if not certain to do so." Sokaogon Gaming Enterprise Corp. v. Tushie- Montgomery Associates, Inc., 86 F.3d 656, 659 (7th Cir. 1996). As to Thrasher-Lyon's individual claim the issues were decisive (unless there is another defense of which neither the Court nor, apparently, the parties, are aware). Thus, reversal of the Court's ruling would end the case, as far as she is concerned. And if the Court's ruling stands, it certainly will color how the remainder of the case will proceed as it now enters the class-certification stage. The scope of the class, if there is to be one, will likely be circumscribed by the Court's interpretation of "prior express consent" and the creditor-debtor rule. By the same token, CCS might argue that the Court's ruling requires denial of class certification, for example because of individualized issues that might be raised. Certainly the Court's own view of class certification is affected by whether it correctly interpreted the TCPA exception and the FCC's 2008 Order.

Next, the Court recognizes that its interpretation of "prior express consent" presents "substantial ground for difference of opinion," see 28 U.S.C. § 1292(b). A "'substantial ground for a difference of opinion' must arise out of a genuine doubt as to whether the district court applied the correct legal standard in its order." Consub Delaware LLC v. Schahin Engenharia Limitada, 476 F. Supp. 2d 305, 309 (S.D.N.Y. 2007). This could mean that there is conflicting authority on the issue, or that the issue is particularly difficult and of first impression. Id.; see Brown v. Mesirow Stein Real Estate, Inc., 7 F. Supp. 2d 1004, 1008 (N.D. Ill. 1998) (considering whether "controlling court of appeals has decided the issue").

Here, there is not abundant authority for either side's position on this issue. The Court has identified two decisions consistent with its own holding: Leckler v. CashCall, Inc., 554 F. Supp. 2d 1025 (N.D. Cal. 2008) and Edeh v. Midland Credit Mgmt, Inc., 748 F. Supp. 2d 1030 (D. Minn. 2010). The Court agrees with both of these decisions insofar as they require "express consent" to be explicit and not implied. Yet the Court finds no strength in numbers. The Leffler court retreated from its holding, later finding it to be barred by the Hobbs Act because the case clearly involved a consumer loan (and so fell within the debtor-creditor context of the FCC's Orders). See Leckler v. Cashcall, Inc., 2008 WL 5000528 (N.D. Cal. Nov. 21, 2008). And ...

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