CHICAGO — A federal judge won't let a man who claimed to have received hundreds of calls from FedEx to lead a class action against the parcel shipper, saying there isn't proof anyone else received that many calls in the same manner he did, due to a glitch in FedEx's system governing its so-called "trace call" system.
Judge Joan Gottschall issued an opinion March 16 denying class certification in a lawsuit led by named plaintiff Najeh Abdallah.
Abdallah sued FedEx in 2016 for alleged violations of the Telephone Consumer Protection Act (TCPA.) According to court documents, Abdallah claimed FedEx placed hundreds of “trace calls” to his cellphone number, which he had placed into the national Do Not Call registry.
Trace calls originate with FedEx Corporate Services or a contracted call center and are placed to the shipping party if there is an impediment on an international delivery. In September 2019, Gotschall partially denied FedEx’s motion for summary judgment on the complaint.
In denying summary judgment, Gottschall noted that, although trace calls are related to the legitimate business purpose of getting a package delivered, a reasonable jury could rule in Abdallah’s favor if it determined FedEx and its contractors “incentivize trace agents to persuade customers to purchase return shipping services;” indirectly train agents to encourage those purchases; or if the calls give recipients “more than a collateral opportunity to purchase shipping services.”
After that ruling, the parties conducted eight months of discovery related to class certification. FedEx produced a 60-day call log database, which included 131,441 numbers called. Abdallah’s lawyers said that list included 5,940 numbers also on the Do Not Call registry, and the parties agreed to a random sampling of 150 of those numbers, which ultimately yielded 2,354 case notes relevant to the litigation.
Abdallah proposed a class of anyone who got at least two FedEx or C3 trace calls on a cellphone in any 12-month period since July 1, 2015, provided the calls came 31 days after they put their number on the federal list. He also suggested a “wrong number” subclass for anyone in the main class who also can show they aren’t a FedEx customer.
Although FedEx moved to dismiss parts of Abdallah’s evidence, Gottschall said she resolved the challenges to class numerosity, typicality and adequacy with the undisputed claims.
“In addition to Abdallah’s concession that he has produced no evidence of other ‘wrong number’ trace calls,” Gottschall wrote, “uncontested evidence in the record raises a legitimate doubt that any other members of the subclass exist.”
FedEx offered details about a database glitch resulting in hundreds of trace calls after Abdallah called FedEx customer service inquiring about a package he sent to Jordan.
“Because Abdallah did not give his name when he called, his contact information became associated in FedEx’s OneSource system with the code ‘NFN NLN’ (‘no first name, no last name’),” Gottschall wrote. “For a period after that, any case that was created with the code ‘NFN NLN’ was assigned Mr. Abdallah’s phone number as a secondary number.”
Abdallah’s number got listed as the secondary contact for more than 1,000 other customers, a problem that took months to identify and correct. But because there is no evidence it happened to anyone else, Gottschall said, there isn’t support for establishing the subclass.
Gottschall said evidence shows unwanted trace calls to enough numbers that might justify the main class certification, but there is no indication those people got calls in the same manner as Abdallah, or that they had similar contacts with FedEx.
The judge said this led her to reject certification on grounds of typicality, as well as the question of whether his claim is adequate to serve the interests of everyone who would qualify under his class definition.
Abdallah has been represented in the action by attorneys Brendan J. Duffner, Timothy P. Kingsbury and Eugene Y. Turin, of McGuire Law P.C., of Chicago.
FedEx has been defended by attorney John Campbell, of the company's legal department, and Brian Y. Chang, of the firm of Eimer Stahl LLP, of Chicago.