Robert Hossfeld v. Allstate Insurance Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 25-1518 & 25-1672
R OBERT HOSSFELD,
Plaintiff-Appellee/Cross-Appellant,
v.
A LLSTATE I NSURANCE C OMPANY ,
Defendant-Appellant/Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cv-07091 — Joan B. Gottschall, Judge.
____________________
A RGUED M AY 11, 2026 — DECIDED J UNE 24, 2026
____________________
Before R OVNER , SYKES, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Atlantic Telemarketing Center
placed twelve calls to Robert Hossfeld advertising automobile
insurance policies from Allstate Insurance Company. Months
prior, Hossfeld had asked Allstate not to place any marketing
calls to his phone number. Claiming Allstate bore responsibil-
ity for Atlantic’s phone calls under agency principles, Hoss-
feld sued Allstate for violating the Telephone Consumer Pro-
tection Act (“TCPA”), which requires companies to honor a

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2 Nos. 25-1518 & 25-1672
consumer’s do-not-call request. He also filed for class certifi-
cation, contending he represented a class of individuals simi-
larly downtrodden by Allstate’s telemarketing campaigns.
The district court denied Hossfeld’s motion for class certifica-
tion but ruled in his favor on cross-motions for summary
judgment regarding TCPA liability. We affirm the court’s
class certification ruling but reverse its summary judgment
decision because Hossfeld failed to show Allstate is liable for
Atlantic’s calls under any theory of agency law.
I. Background
A. The Telephone Consumer Protection Act
In 1991, facing the rapid proliferation of robocalls and
other telemarketing practices, Congress passed the TCPA. See
47 U.S.C. §§ 227–227b-2; 47 C.F.R. § 64.1200 (2020). Among
other things, the TCPA and its implementing regulations pre-
vent telemarketers from placing calls to individuals who have
requested not to receive them. To that end, 47 C.F.R.
§ 64.1200(d) provides that “[n]o person or entity shall initiate
… any call for telemarketing purposes to a residential tele-
phone subscriber unless such person or entity has instituted
procedures for maintaining a list of persons who request not
to receive such calls made by or on behalf of that person or
entity.” This list of individuals who request no calls from a
particular company is commonly known as an internal do-
not-call list. Section 64.1200(d) also provides the “minimum
standards” for internal do-not-call list procedures. Telemar-
keters must, for example, maintain a written do-not-call pol-
icy, document all no-call requests, and honor those requests
within a reasonable amount of time. § 64.1200(d)(1)–(6).

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Nos. 25-1518 & 25-1672 3
To assist enforcement, the TCPA provides a private right
of action for consumers to sue companies for violations of the
Act. 47 U.S.C. § 227(c)(5). Section 227(c)(5) allows any “person
who has received more than one telephone call within any 12-
month period by or on behalf of the same entity in violation
of the regulations” to bring an action against that entity for
injunctive relief, monetary damages, or both. And if the de-
fendant’s violation was willful or knowing, the plaintiff may
receive treble damages. Id.
B. Factual Background
Allstate sells insurance policies to customers nationwide.
It solicits customers in part through telemarketing calls. The
calls at issue in this suit arose from a marketing campaign in-
itiated by two insurance agents—Jason Fleming and Daniel
Gilmond—who sell Allstate insurance products. Under their
contract with Allstate, Fleming and Gilmond agreed to com-
ply with all applicable laws, including the TCPA, and to en-
sure any “external provider[s]” comply with all applicable
laws and policies, too. This includes honoring Allstate’s do-
not-call policy, which forbids calls to anyone who has re-
quested not to be called unless the caller believes that it has
“express written invitation or consent.”
Allstate insurance agents sometimes engage entities with
which Allstate has no direct contractual relationship, called
“Non-Contracted Telemarketers.” During the relevant time
period, Allstate permitted its direct agents “to engage Non-
Contracted Telemarketers to initiate calls to consumers for the
purpose of encouraging the purchase of Allstate products and
services,” but only if “the agent and Non-Contracted Telemar-
keters comply with [the] Agency Standards and incorporated
Do Not Call Policy.”

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4 Nos. 25-1518 & 25-1672
Fleming and Gilmond each retained one such Non-Con-
tracted Telemarketer, a company called Transfer Kings, in
2020. Transfer Kings agreed to place calls to customers and
transfer anyone interested in purchasing Allstate auto insur-
ance to the insurance agents.
But rather than place the calls for the insurance agents it-
self, Transfer Kings subcontracted the work to yet another tel-
emarketing company, Atlantic. Transfer Kings did not tell
Fleming and Gilmond about Atlantic when the agents hired
Transfer Kings. Neither Allstate nor its insurance agents
knew that Atlantic existed and was marketing Allstate insur-
ance until after Hossfeld filed his lawsuit.
Atlantic placed twelve calls to Hossfeld marketing Allstate
products and services from November 2020 to February 2021.
Allstate’s internal do-not-call list had included Hossfeld’s
phone number since July 10, 2020—about five months before
Atlantic placed the calls at issue. Allstate did not place any of
these calls itself, nor did Allstate direct Atlantic to place the
calls.
Before placing the calls, Atlantic had purchased a list of
prospective customers, known as “leads,” from another com-
pany called KP Leads. KP Leads represented that all the
phone numbers on the leads list belonged to people who had
consented to receiving phone calls.
The list KP Leads purchased included Hossfeld’s phone
number, but it was associated with the names “Michael John-
son” and “Michael Bradley.” Hossfeld also misrepresented
his identity on the calls at issue in this case, using various ali-
ases. In the past, Hossfeld had feigned interest in an auto in-
surance quote online under the fake names. He explained he

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Nos. 25-1518 & 25-1672 5
did this “to investigate” the telemarketing calls to make them
stop.
Atlantic eventually connected Hossfeld to Fleming and
Gilmond, who later emailed him quotes. Hossfeld never pur-
chased any insurance from Allstate.
C. Procedural Background
Hossfeld sued Allstate under the TCPA’s private remedy
provision, alleging Allstate failed to maintain a sufficient in-
ternal do-not-call policy and impermissibly called him de-
spite his no-call requests. See 47 U.S.C. § 227(c)(5); 47 C.F.R.
§ 64.1200(d). He sought damages and an injunction to prevent
further violative marketing calls. See § 227(c)(5)(C). Hossfeld
also moved for class certification, claiming that Allstate’s vio-
lations implicated a large number of similarly wronged call
recipients. The district court denied Hossfeld’s motion, how-
ever, explaining he had failed to prove that his proposed class
was sufficiently numerous to justify a class action. See Fed. R.
Civ. P. 23(a)(1) (requiring a plaintiff to show that the “class is
so numerous that joinder of all members is impracticable”).
Ruling on cross-motions for summary judgment, the dis-
trict judge sided with Hossfeld, concluding that Allstate was
vicariously liable for Atlantic’s TCPA violations. Because (ac-
cording to the court) Allstate authorized its insurance agents
to appoint Transfer Kings on its behalf, and Transfer Kings in
turn hired Atlantic, Atlantic’s actions flowed up the chain of
agency and implicated Allstate. The court further found All-
state’s violations were willful and knowing under § 227(c)(5),
triggering treble damages.

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6 Nos. 25-1518 & 25-1672
Allstate now appeals the district court’s summary judg-
ment finding it liable and Hossfeld cross-appeals the class cer-
tification denial.
II. Legal Standard
We review the district court’s grant of summary judgment
de novo, drawing all reasonable inferences in the nonmovant’s
favor. Brown v. Osmundson, 38 F.4th 545, 549 (7th Cir. 2022).
“Summary judgment is appropriate when there is no genuine
dispute of material fact, and the moving party is entitled to
judgment as a matter of law.” Id. A factual dispute is “genu-
ine” if the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Christensen v. Weiss, 145
F.4th 743, 751 (7th Cir. 2025).
III. Discussion
Allstate challenges the district court’s summary judgment
decision finding Allstate vicariously liable for Atlantic’s will-
ful violations of the TCPA. The parties also dispute whether
Allstate was vicariously liable for Atlantic’s actions under al-
ternative agency-law theories. For his part, Hossfeld chal-
lenges the court’s denial of class certification, arguing it erred
in its numerosity analysis. We address each issue in turn.
A. Liability for Atlantic’s Calls to Hossfeld
Hossfeld argues that Allstate is liable for Atlantic’s calls
under doctrines of agency law that render an agent’s conduct
legally attributable to a principal. “Agency is the fiduciary re-
lationship that arises when one person (a ‘principal’) mani-
fests assent to another person (an ‘agent’) that the agent shall
act on the principal’s behalf.” Restatement (Third) of Agency
§ 1.01 (2006); see Opp v. Wheaton Van Lines, Inc., 231 F.3d 1060,
1064 (7th Cir. 2000) (“[T]he federal common law of agency[]

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Nos. 25-1518 & 25-1672 7
accord[s] with the Restatement.”). Under an agency relation-
ship, the agent “acts on behalf of [the principal] with power
to affect the [principal’s] legal rights and duties.” Restatement
§ 1.01 cmt. c. Though often agency is confined to the agent and
principal only, some agency relationships involve a suba-
gent—someone the agent appoints “to perform functions that
the agent has consented to perform on behalf of the agent’s
principal.” Id. § 1.04(8). A subagent’s acts, like an agent’s, can
legally implicate the principal. Id. § 3.15 cmt. c.
Agency law recognizes various theories for attributing li-
ability from agent to principal. The two relevant here are ac-
tual authority and apparent authority. An agent acts with ac-
tual authority if, “at the time of an agent’s conduct, ‘the agent
reasonably believes, in accordance with the principal’s mani-
festations to the agent, that the principal wishes the agent so
to act.’” Bilek v. Fed. Ins. Co., 8 F.4th 581, 587 (7th Cir. 2021)
(quoting Restatement § 2.01). An agent acts with apparent au-
thority when “a third party reasonably believes the actor has
authority to act on behalf of the principal and that belief is
traceable to the principal’s manifestations.” Restatement
§ 2.03. Absent either type of authority, an agent’s act is still
attributable to a principal if the principal ratifies the act. Id.
§ 4.01. “Ratification is the affirmance of a prior act done by
another, whereby the act is given effect as if done by an agent
acting with actual authority.” Id. § 4.01(1). A principal may
ratify an act by manifesting assent to the act. Id. § 4.01(2). If an
agent acts with actual or apparent authority or the principal
ratifies the agent’s act, the principal is liable for the legal con-
sequences of that act.
These common law agency principles apply to the TCPA
and may operate to hold a defendant vicariously liable for the

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8 Nos. 25-1518 & 25-1672
TCPA violations of another. Campbell-Ewald Co. v. Gomez, 577
U.S. 153, 168 (2016) (citing In re Joint Petition Filed by Dish Net-
work, LLC, 28 FCC Rcd. 6574 (2013)); Warciak v. Subway Rests.,
Inc., 949 F.3d 354, 356 (7th Cir. 2020) (applying federal com-
mon law of agency to assess vicarious liability for TCPA vio-
lations); Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935,
938 (7th Cir. 2016) (same). Hossfeld claims Allstate is vicari-
ously liable for Atlantic’s calls because Atlantic was Allstate’s
subagent acting with actual authority or, alternatively, be-
cause Allstate effectively authorized Atlantic’s calls under ap-
parent authority and ratification theories.1 Hossfeld failed to
raise a genuine issue of fact that would allow a jury to find
Allstate liable under any of these theories.
1. Subagency Theory
Following the district court’s lead, Hossfeld argues All-
state bears responsibility for Atlantic’s actions because Atlan-
tic was the insurance company’s “subagent.” Subagency the-
ory acknowledges that a principal may sometimes authorize
its agent to appoint an additional party to perform some of
the tasks the principal delegated to the agent. Restatement
§ 3.15(1). With the principal’s blessing, the added party joins
the agency relationship as a subagent. Id. The subagent shares
1 Hossfeld appears to argue for the first time on appeal that Allstate
was also directly liable for Atlantic’s calls by virtue of its inadequate do-
not-call policy. He conceded during oral argument, however, that he
failed to raise a direct liability argument below and did not press it further.
See Oral Argument at 15:38–16:00, Hossfeld v. Allstate Ins. Co., No. 25-1518
(2026), media.ca7.uscourts.gov/sound/2026/dab.25-1518.25-1518_05_11_
2026.mp3. Hossfeld has therefore waived any direct liability arguments
regarding Allstate’s policies on appeal. See Crothersville Lighthouse Taber-
nacle Church, Inc. v. Church Mut. Ins. Co., 168 F.4th 483, 491 (7th Cir. 2026).

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Nos. 25-1518 & 25-1672 9
an agency relationship with both the agent who appointed it
and the original principal. “Thus, a subagent has two princi-
pals, the appointing agent and that agent’s principal.” Id.
cmt. b. As such, legal responsibility for the subagent’s actions
travels up the chain of agency, implicating both the appoint-
ing agent and the principal. Id.
“An agent may appoint a subagent only if the agent has
actual or apparent authority to do so.” Id. § 3.15(2). This is
consistent with agency principles more generally: Only ac-
tions within the scope of an agent’s authority may legally im-
plicate the principal. United States v. Dish Network L.L.C., 954
F.3d 970, 977 (7th Cir. 2020) (“[A]cts outside of an agent’s au-
thority do not generate liability for the principal.”). If an agent
signs a contract it had no authority to sign, for example, the
contract does not legally bind the principal. See Heckler v.
Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 65 n.21
(1984). An agent’s tortious behavior beyond its authority im-
plicates only the agent, not the principal. See Dish Network, 954
F.3d at 977. And if an agent has no authority to appoint a sub-
agent to perform the tasks delegated to it, any person the
agent appoints is the agent’s responsibility, not the princi-
pal’s. Restatement § 3.15 cmt. c; 3 Am. Jur. 2d Agency § 127
(“The principal will not be held responsible for the tortious
conduct of a subagent appointed without authority because a
person is the agent of the agent, not of the principal.”).
A subagent may, in turn, appoint a sub-subagent, for
whose conduct the subagent is responsible, and who also has
an agency relationship with the principal. Restatement § 3.15
cmt. c. The subagent, like the agent, must have actual or ap-
parent authority to appoint the sub-subagent. Id. Thus, multi-
ple subagency relationships may stack upon each other in a

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10 Nos. 25-1518 & 25-1672
series. But for this to occur, there must be appointing author-
ity at each level to support an agency relationship between
each subagent and the principal. Id.
The district court held, and Hossfeld argues on appeal,
that Atlantic was a validly appointed subagent whose liability
accordingly implicates Allstate. Because Transfer Kings hired
Atlantic, the central question is whether Transfer Kings had
authority to appoint Atlantic to act on Allstate’s behalf. If not,
Atlantic was an agent of Transfer Kings, and any liability At-
lantic incurred for its calls flowed to Transfer Kings, never
reaching Allstate. The district court and Hossfeld both focus
on actual authority as the attributive mechanism, so we do the
same, finding Hossfeld failed to raise an issue of fact that
Transfer Kings had actual authority to appoint Atlantic.
An agent has actual authority to appoint a subagent
“when the agent reasonably believes, based on a manifesta-
tion from the principal, that the principal consents to the ap-
pointment of a subagent.” Id. A principal’s consent to a suba-
gent’s appointment may be express or implied, id., and may
be communicated “through written or spoken words or other
conduct,” id. at § 1.03.
For an agent to have express actual authority, the principal
“must have directly spoken or written to” or otherwise acted
toward the agent instructing him to take the specified action.
Bridgeview, 816 F.3d at 939. Here, nothing Allstate said or did
indicated it authorized Transfer Kings to appoint sub-suba-
gents on its behalf. In fact, the record is devoid of any com-
munications from Allstate to Transfer Kings at the time Trans-
fer Kings hired Atlantic, and Hossfeld concedes Allstate did
not know Transfer Kings existed before he filed this suit.
Though Allstate later communicated with Transfer Kings to

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Nos. 25-1518 & 25-1672 11
investigate Hossfeld’s complaints, actual authority analysis
focuses on what the purported agent knew when it acted. See
Restatement § 3.15 cmt. c. Transfer Kings must have reasona-
bly believed at the time it hired Atlantic that Allstate authorized
it to do so. Those later communications therefore did not ret-
roactively authorize Transfer Kings to appoint Atlantic
months earlier.
Hossfeld and the district court rely, instead, on language
from Allstate’s contracts with Fleming and Gilmond, which
instructs the insurance agents to ensure all “external suppli-
ers” and “provider[s]” comply with the relevant laws and pol-
icies when “placing any calls for Allstate.” This language,
they claim, shows Allstate contemplated the appointment of
subagents to place calls on its behalf. Thus, Fleming and
Gilmond had authority to appoint Transfer Kings, who in
turn had authority to appoint Atlantic. But this reasoning im-
properly collapses the subagency analysis, which requires au-
thority to support each layer of delegation. Perhaps Fleming
and Gilmond could reasonably believe Allstate allowed them
to appoint subagents based on Allstate’s reference to external
suppliers. But the central question is whether Allstate author-
ized Transfer Kings to appoint subagents, not whether it au-
thorized Fleming and Gilmond to do so. Transfer Kings had
no contract with Allstate referencing external suppliers, nor is
there evidence that Transfer Kings saw the quoted contract
language before hiring Atlantic. Allstate did not direct the
contract language at Transfer Kings, and it could not have
been a basis for Transfer Kings to reasonably believe Allstate
authorized it to appoint subagents on its behalf.
Hossfeld’s contention that the contract language does not
necessarily limit appointment of subagents to a single level of

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12 Nos. 25-1518 & 25-1672
delegation misses the point. Actual authority hinges on a
principal’s manifestation to the agent that leads the agent to
reasonably believe he has authority. See Bilek, 8 F.4th at 587;
Restatement § 2.01. Even if the contract language does not ex-
plicitly limit appointing authority to Allstate’s direct insur-
ance agents, any express actual authority is nevertheless lim-
ited to those agents because Allstate directed its manifestation
to the agents, not to Transfer Kings. Hossfeld also fails to
identify a limiting principle for his argument. If Allstate’s lia-
bility extends to Atlantic because the contract language refer-
ences external entities, what would stop it from extending be-
yond Atlantic through unlimited layers of subagents? Adopt-
ing Hossfeld’s position would allow for seemingly infinite
levels of subagency—and an accompanying unending chain
of vicarious liability—all without any hint of Allstate’s assent.
Moreover, Hossfeld’s argument—that the contract does
not forbid subagents from appointing sub-subagents—misun-
derstands his burden to produce affirmative evidence show-
ing Transfer Kings was authorized to appoint Atlantic. See
Valenti v. Qualex, Inc., 970 F.2d 363, 367 (7th Cir. 1992) (“The
party alleging an agency relationship has the burden of prov-
ing it.”). Agency relationships are not the default, so it is in-
sufficient to show merely that there is no evidence indicating
the absence of authority; Hossfeld must show its presence.
The district court similarly misunderstood Hossfeld’s bur-
den when it reasoned that Transfer Kings could appoint sub-
agents because nothing in the record strictly forbade it from
doing so or indicated that the appointment was not standard
industry practice. This lack of evidence does not satisfy Hoss-
feld’s burden to produce evidence affirmatively showing
Transfer Kings was authorized to appoint Atlantic as a

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Nos. 25-1518 & 25-1672 13
subagent. See Bank of Com. v. Hoffman, 829 F.3d 542, 545–56
(7th Cir. 2016). Hossfeld failed to make that showing, so All-
state had no burden to overcome a presumption of actual au-
thority. Id.
Hossfeld identifies no evidence that would allow a jury to
find Allstate directly spoke, wrote, or acted toward Transfer
Kings authorizing it to appoint anyone to make telemarketing
calls on Allstate’s behalf. Accordingly, Transfer Kings did not
have express actual authority to do so. See Bridgeview, 816 F.3d
at 939.
Nor did Hossfeld present any evidence of implied actual
authority, which applies when an agent is authorized to take
actions “necessary, usual, and proper to accomplish” the
agent’s express responsibilities. Restatement § 2.01 cmt. b. In-
dustry customs often show what duties are impliedly part of
an agent’s authority, but Hossfeld submitted no evidence on
that point. See Bridgeview, 816 F.3d at 939 (“Implied authority
is inherently contained in the agent’s position.”). We see no
reason to find that insurance marketing “inherently de-
mands” endless chains of subagents. Id. Thus, contrary to the
district court’s holding, the undisputed facts show Transfer
Kings had neither express nor implied actual authority to ap-
point Atlantic as a subagent. Hossfeld therefore cannot suc-
ceed in holding Allstate vicariously liable on a subagency the-
ory.
2. Alternative Theories
Hossfeld argues alternatively, as he did below, that All-
state is liable for Atlantic’s calls either because Atlantic had

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14 Nos. 25-1518 & 25-1672
apparent authority to make the calls or because Allstate rati-
fied them.2 As we explain, neither argument succeeds.
First, though, a preliminary matter: We reject Hossfeld’s
assertion that Allstate waived any arguments as to apparent
authority and ratification by failing to address either theory
in its opening brief. Because the district court’s decision
reached neither issue, this is not a case where the appellant
waives an argument by failing to “engage[] with the reason-
ing of the district court.” Bradley v. Village of University Park,
59 F.4th 887, 897 (7th Cir. 2023). When Hossfeld raised these
alternative affirmance arguments in his response, Allstate
properly addressed them in its reply brief. See Bennett v.
Tucker, 827 F.2d 63, 69 n.2 (7th Cir. 1987); see also United States
v. Brown, 348 F.3d 1200, 1213 (10th Cir. 2003) (“When an ap-
pellee raises in its answer brief an alternative ground for affir-
mance, the appellant is entitled to respond in its reply brief.”).
Turning now to Hossfeld’s apparent authority argument.
“Apparent authority … is created by a person’s manifestation
that another has authority to act with legal consequences for
the person who makes the manifestation, when a third party
reasonably believes the actor to be authorized and the belief
is traceable to the manifestation.” Restatement § 3.03. Because
apparent authority relies on a manifestation of the principal,
“[t]o create apparent authority, the principal must speak,
write, or otherwise act toward a third party.” Bridgeview, 816
2 The district court did not address apparent authority or ratification,
but we resolve both arguments rather than remanding to the district court
because “[t]he parties have had a full and fair opportunity to argue all
relevant aspects of” these issues and the “correct resolution … is clear.”
Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1137–38 (7th Cir. 1987).

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Nos. 25-1518 & 25-1672 15
F.3d at 939. Further, “only the words or conduct of the alleged
principal, not the alleged agent, establish the [apparent] au-
thority of an agent.” Opp, 231 F.3d at 1064 (citation modified);
accord Warciak, 949 F.3d at 357 (“Statements by an agent are
insufficient to create apparent authority.”); Restatement § 2.03
cmt. c. (“An agent’s success in misleading the third party as to
the existence of [] authority does not in itself make the princi-
pal accountable.”).
Hossfeld offers no evidence Allstate interacted with him
in any way, let alone in a way that led him to reasonably be-
lieve Allstate authorized Atlantic to act as its agent. Hossfeld
nonetheless insists Atlantic had apparent authority because
its representatives stated they were calling on Allstate’s be-
half. But Allstate never made those statements, nor did it in-
struct Atlantic to do so. Hossfeld identified no evidence to
trace Atlantic’s call introductions, or Hossfeld’s alleged reli-
ance on them, to any manifestation by Allstate—the only
party that matters for apparent authority analysis.
Nor does Hossfeld raise an issue of fact, as he must, that
he reasonably relied on Atlantic’s apparent authority. See War-
ciak, 949 F.3d at 357 (affirming dismissal where complaint
failed to show plaintiff “reasonably relied, to his detriment,
on any apparent authority” that may have existed). Hossfeld
does not show that he took any actions after receiving Atlan-
tic’s calls and emails, and he concedes he never purchased any
of Allstate’s services. This is unsurprising, as Hossfeld admit-
ted he was only pretending to be interested in Allstate’s insur-
ance policies and never intended to purchase one. Hossfeld
fails to show he reasonably relied on any representation that
Atlantic acted on Allstate’s behalf, so his apparent authority
argument fails for this reason, too. Id.

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16 Nos. 25-1518 & 25-1672
Turning next to Hossfeld’s ratification theory, he again has
failed to raise any genuine dispute of material fact that would
allow a jury to find for him. Hossfeld argues Allstate ratified
Atlantic’s calls to him by accepting benefits arising from the
non-compliant calls. See Restatement § 4.01, cmt. d. (“[K]now-
ing acceptance of the benefit of a transaction ratifies the act of
entering into the transaction.”). He claims Allstate’s benefits
sound in thousands of customer insurance quotes and hun-
dreds of issued policies arising from telemarketing calls made
on Allstate’s behalf.
But this is too broad. The TCPA’s private remedy provi-
sion permits a plaintiff to challenge only calls placed to him,
rather than a company’s calling practices writ large (absent a
class action), so Hossfeld must show Allstate retained benefits
based on Atlantic’s calls to him specifically. It is not enough
that Allstate continued to operate and accept benefits from its
telemarketing programs more generally.
We see no evidence that Allstate knowingly retained any
benefits arising from the calls Atlantic placed to Hossfeld.
Hossfeld admits he never obtained insurance or any other ser-
vices from Allstate. And even if the act of sending a quote or
email to a potential customer constituted a “benefit,” it was
Allstate’s agents, not Allstate, who sent the quotes to Hoss-
feld. This is insufficient to support that Allstate knowingly ac-
cepted and retained any benefit stemming from the calls to
Hossfeld.
Hossfeld also argues Allstate ratified Atlantic’s calls
through a “failure to act.” Id. § 4.01 cmt. f. (“A principal may
ratify an act by failing to object to it or to repudiate it…. Fail-
ure to object may constitute such a manifestation [of assent]
when the [principal] has notice that others are likely to draw

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Nos. 25-1518 & 25-1672 17
such an inference from silence.”). To ratify through inaction,
the principal must have “knowledge of material facts about
the agent’s act unless the principal chose to ratify with aware-
ness that such knowledge was lacking.” Id. § 4.01, cmt. b.
It is doubtful the evidence here could allow a reasonable
jury to find Allstate knew Atlantic was placing calls marketing
its insurance. Hossfeld cites to a late-2020 email thread be-
tween Transfer Kings and Allstate, but the thread does not
discuss Atlantic’s role and Atlantic is not a party to it. The
email chain references Atlantic’s name only in the title of an
attached Excel document, and the title is never explained. He
also points to a 2021 video call between a Transfer Kings rep-
resentative and Allstate’s compliance officers, but the Trans-
fer Kings representative admits that during the call, he obfus-
cated Atlantic’s role and did not disclose that Atlantic was
placing calls for Allstate.
But even assuming Allstate knew Atlantic was calling
Hossfeld’s number and marketing Allstate insurance prod-
ucts to him, Hossfeld has not shown Allstate ratified Atlantic’s
calls through inaction. To the contrary, Allstate promptly
traced the problematic calls to Transfer Kings and immedi-
ately began a thorough investigation into the calls and the
source of the leads. And within a few months of the investi-
gation and meeting with Transfer Kings’ representative, All-
state prohibited its insurance agents from contracting with ei-
ther Transfer Kings or Atlantic. No reasonable jury could con-
strue Allstate’s response as a total failure to act tantamount to
ratification of Atlantic’s calls. See Hodgin v. UTC Fire & Sec.
Americas Corp., 885 F.3d 243, 252 (4th Cir. 2018) (finding no
ratification in TCPA case where defendant quickly responded

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18 Nos. 25-1518 & 25-1672
to complaints about unwanted calls and ultimately termi-
nated any involvement with that telemarketer).
B. Willfulness Standard
The TCPA provides for treble damages if the plaintiff
shows “that the defendant willfully or knowingly violated the
regulations.” 47 U.S.C. § 227(c)(5). The district court found
that “willful” in the context of the TCPA requires only that the
violator’s acts be “volitional.” This is not the correct standard.
Though we have not defined “willful” in the TCPA con-
text, we have said that “[t]o act ‘willfully’ is, for purposes of
civil law, to engage in conduct that creates ‘an unjustifiably
high risk of harm that is either known or so obvious that it
should be known.’” Redman v. RadioShack Corp., 768 F.3d 622,
627 (7th Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825,
836, (1994)). In other words, to act recklessly. Id. To find a civil
defendant’s actions reckless, the risk of a violation must be
“serious and eminently avoidable,” and either known to the
defendant or so obvious that it should have been known to
them. Id. (citing Slade v. Bd. of Sch. Dirs., 702 F.3d 1027, 1029
(7th Cir. 2012)).
The Supreme Court has confirmed that willfulness, in the
civil liability context, refers to both knowing and reckless vi-
olations of a standard. Safeco Ins. Co. of America v. Burr, 551
U.S. 47, 56–60, (2007). The Court held “willful” included both
actions taken with knowledge that they violate the relevant
statute and actions done with reckless disregard for whether
they are violative. Id.
We have adopted the Safeco standard in addressing
whether a company willfully violated the Fair and Accurate
Credit Transactions Act. See, e.g., Persinger v. Sw. Credit Sys.,

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Nos. 25-1518 & 25-1672 19
L.P., 20 F.4th 1184, 1197 (7th Cir. 2021) (“A willful violation is
one committed with actual knowledge or recklessness.” (cit-
ing Safeco, 551 U.S. at 56–57)); Redman, 768 F.3d at 638 (simi-
lar). We see no reason why a different standard should apply
to willfulness under the TCPA than applies to federal statu-
tory schemes governing credit reporting issues. Both schemes
address broad issues that plague consumers, provide a pri-
vate right of action, and allow for increased damages for will-
ful violations.
Our conclusion aligns with the other courts of appeals
who have considered the issue. The Fourth Circuit explained
that willfulness under the TCPA requires more than negli-
gence, imposing treble damages only if the defendant’s ac-
tions “demonstrated indifference to ongoing violations and a
conscious disregard for compliance with the law.” Krakauer v.
Dish Network, L.L.C., 925 F.3d 643, 661–62 (4th Cir. 2019). And
the Eleventh Circuit has consistently required a TCPA viola-
tor to “know he was performing the conduct that violates the
statute,” rather than merely acting volitionally to impose tre-
ble damages. See, e.g., Lary v. Trinity Physician Fin. & Ins.
Servs., 780 F.3d 1101, 1107 (11th Cir. 2015).
Volitional action is thus insufficient to trigger treble dam-
ages under the TCPA; we require reckless or knowing behav-
ior.
C. Class Certification
We turn finally to the district court’s denial of Hossfeld’s
class certification motion, which we review for an abuse of
discretion. See Howard v. Cook Cnty. Sheriff’s Off., 989 F.3d 587,
598 (7th Cir. 2021).

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20 Nos. 25-1518 & 25-1672
A plaintiff seeking class certification must show, among
other things, that the putative “class is so numerous that join-
der of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
While “impracticable” does not mean “impossible,” a class
representative must show “that it is extremely difficult or in-
convenient to join all the members of the class.” Anderson v.
Weinert Enters., Inc., 986 F.3d 773, 777 (7th Cir. 2021) (quoting
7A Charles Wright & Arthur Miller, Federal Practice & Proce-
dure § 1762 (3d ed. 2005)). As the party seeking class certifica-
tion, Hossfeld bears the burden of proving by a preponder-
ance of evidence that his proposed class is sufficiently numer-
ous. Id. (citing Chi. Tchrs. Union, Local No. 1 v. Bd. of Educ., 797
F.3d 426, 433 (7th Cir. 2015)).
“The key numerosity inquiry under Rule 23(a)(1) is not the
number of class members alone but the practicability of join-
der.” Id. In assessing practicability, we evaluate “the nature of
the action, the size of the individual claims, and the location
of the members of the class or the property that is the subject
matter of the dispute.” Id. (quoting Wright & Miller at § 1762).
We have recognized that “a forty-member class is often re-
garded as sufficient to meet the numerosity requirement.” Orr
v. Shicker, 953 F.3d 490, 498 (7th Cir. 2020) (quoting Mulvania
v. Sheriff of Rock Island Cnty., 850 F.3d 849, 859 (7th Cir. 2017)).
“But a class of 40 or more does not guarantee numerosity.”
Anderson, 986 F.3d at 777.
Before the district court, Hossfeld identified thirty-three
unique telephone numbers (including his own) on Allstate’s
internal do-not-call list that Transfer Kings or Atlantic had
called as part of the same campaign to sell Allstate insurance.
He assured the court there were certain to be more class mem-
bers given the alleged lack of coordination of do-not-call lists

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Nos. 25-1518 & 25-1672 21
between Allstate and Transfer Kings. But he cited no evidence
supporting this speculation and mounted no argument that
joinder would be impracticable.
The district court did not abuse its discretion by dismiss-
ing Hossfeld’s class certification motion for lack of numer-
osity. A plaintiff must produce more than “speculation as to
the size of the class in order to prove numerosity.” Id. at 778.
Hossfeld failed to do so. The thirty-three-member class he
presented fell easily below the general forty-member bench-
mark, and he failed to meet his burden by showing the im-
practicability of joinder. Hossfeld failed entirely to make any
argument as to impracticability, and the court was not re-
quired to construct legal arguments on his behalf. United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Hossfeld has
not shown the district court abused its discretion.
Finally, Hossfeld asks us to modify the district court’s
class-certification ruling in light of a “changed landscape.”
Even if the court did not abuse its discretion, Hossfeld argues,
the facts have changed so significantly that we can—and
should—amend the ruling. He cites Rule 23, which states that
a class certification ruling “may be altered or amended before
final judgment.” Fed. R. Civ. P. 23(c)(1)(C). But Rule 23 only
allows for modification before final judgment, which has al-
ready passed for Hossfeld. See Docket No. 327 (Order Enter-
ing Final Judgment (Mar. 20, 2025)). More fundamentally,
Rule 23 only allows a district court judge to modify her own
class certification ruling. Though a district court may modify
its order before final judgment, it does not follow that we may
modify it or instruct the district court to do so. Even if the
landscape has changed, which we doubt, we lack the power
to amend the district court’s ruling.

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22 Nos. 25-1518 & 25-1672
Our only mechanism for disturbing the district court’s
class certification ruling is to reverse it if we find the court
abused its discretion. See Howard, 989 F.3d at 610. As dis-
cussed, we find no such abuse here, so we uphold the district
court’s denial of the class certification motion.
* * *
We affirm the district court’s class certification ruling but
reverse the court’s summary judgment and direct the court to
enter judgment for Allstate. The district court’s judgment is
AFFIRMED IN PART AND REVERSED IN PART.

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