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Mauer v. American Intercontinental University Inc.

United States District Court, N.D. Illinois, Eastern Division

September 8, 2016

AMY MAUER, individually and on behalf of all others similarly situated, Plaintiff,


          SARA L. ELLIS United States District Judge.

         Plaintiff Amy Mauer brings a class action complaint against Defendants American Intercontinental University, Inc. and AIU Online, LLC (collectively, “AIU”); Everest University, Everest University Online, Zenith Education Group, Inc., and ECMC Group, Inc. (collectively, “Everest”); and John Doe Corporation (“John Doe”). Mauer asserts that AIU, Everest, and John Doe violated the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227 et seq., by calling her cellular telephone using an automatic telephone dialing system (“ATDS”) without her express consent. Mauer seeks to pursue the action not only individually but also on behalf of the following class:

All persons nationwide who, since October 16, 2013, received one or more telemarketing calls on their cellular telephones from Defendants and/or any other person or entity acting on behalf of Defendants, and placed using an automatic telephone dialing system and/or an artificial or prerecorded voice, where the called party did not previously provide express written consent to be contacted.

Doc. 18 ¶ 60. Mauer seeks certification under Federal Rule of Civil Procedure 23(b)(2) and (b)(3), requesting both statutory damages and an injunction prohibiting Defendants from making calls using an ATDS in the future. In addition to seeking dismissal of Mauer's amended complaint, AIU filed a motion to strike the class allegations.[1] AIU's arguments concerning the impropriety of Mauer's Rule 23(b)(2) and (b)(3) classes are premature and should be raised in opposition to an affirmative motion for class certification after discovery. Although, Mauer has proposed an improper fail-safe class definition, the Court will not strike the class allegations but instead will consider the definition a placeholder, allowing Mauer to amend the class definition before or at the time she moves for class certification.


         On March 17, 2015, around 6:35 p.m., Mauer received a call on her cellular phone from John Doe, a telemarketing agency, through an ATDS using the number (603) 913-2771. When Mauer answered the phone call, she observed a “noticeable pause” before a voice came on the other line. Doc. 18 ¶ 42. The person claimed to be a representative of the U.S. Education Network and tried to get Mauer's contact information to help her “further her education.” Id. Mauer attempted to get more information from the representative, but when the representative did not provide any additional information, Mauer hung up.

         Shortly after Mauer received the call on March 17, 2015, as part of her counsel's investigation, a call was placed to the same number that called Mauer, (603) 913-2771. The representative that answered the call offered educational services to the caller. The caller provided the representative with a telephone number and email address. Within a matter of minutes, AIU and Everest called the given telephone number and sent information to the given email address. AIU and Everest both provide career education services around the country.

         Mauer asserts that John Doe placed hundreds of similar calls for the purpose of collecting contact and other information and providing that information to AIU and Everest as customer leads. Mauer never provided express written consent to be contacted on her cell phone by or on behalf of John Doe, AIU, or Everest. She seeks to represent individuals who received similar calls and did not provide express written consent to be contacted.


         Under Rule 23(c)(1)(A), the Court must determine whether to certify a class “[a]t an early practicable time.” Fed.R.Civ.P. 23(c)(1)(A). Rule 23(d)(1)(D) provides the Court with the ability to require the pleadings to be amended to remove class action allegations. Fed.R.Civ.P. 23(d)(1)(D). Motions to strike class allegations at the pleading stage are appropriate where it is clear from the pleadings that the class claims are defective. See Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (court “need not delay a ruling on certification if it thinks that additional discovery would not be useful in resolving the class determination”). But if the issues concerning class certification are factual, requiring discovery to determine whether certification is appropriate, a motion to strike class allegations at the pleading stage is premature. Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 295 (N.D. Ill. 2014). Unlike with a motion for class certification, on a motion to strike class allegations, the defendant, as the movant, bears the burden of persuasion. Rysewyk v. Sears Holdings Corp., No. 15 CV 4519, 2015 WL 9259886, at *8 (N.D. Ill.Dec. 18, 2015).

         Class certification is appropriate where a plaintiff can meet the four requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation. Fed.R.Civ.P. 23(a). Additionally, a plaintiff must also satisfy one of the three subsections of Rule 23(b). Fed.R.Civ.P. 23(b); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Here, Mauer seeks certification under Rules 23(b)(2) and (b)(3). Rule 23(b)(2) requires a finding that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Rule 23(b)(3) requires a finding that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Finally, although not an explicit requirement of Rule 23, the class members must be identifiable. Oshana, 472 F.3d at 513.


         AIU argues that the Court should strike Mauer's class allegations for three reasons: (1) the class Mauer seeks to represent is an impermissible fail-safe class, (2) Mauer cannot pursue a Rule 23(b)(3) class because individualized issues predominate over common questions of law or fact, and (3) Mauer cannot pursue a Rule 23(b)(2) class because she seeks predominately monetary damages as final relief. Mauer responds that AIU's arguments are premature and that the Court should address AIU's arguments only after she has fully presented her arguments for certification after discovery. She also argues that the class definition does not qualify as ...

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