Nothing more frustrating for a TCPA defendant than to be stuck in a class action when the named plaintiff provided consent to be contacted in the first place.

However the rules of litigation often prevent that issue from being addressed until much later in the case–sometimes even after expensive class discovery– which is why so many TCPA plaintiffs file frivolous lawsuits and manage to extract a high-dollar settlement.

Take the case of Hodge v. Tavel + Leisure Co., 2025 WL 1093243 (N.D. Cal. April 11, 2025). There the Defendant moved to dismiss arguing the Plaintiff had consented to receive the calls at issue. But the Court was unimpressed noting it would only credit the allegations of the complaint at this stage:

Hodge therefore had no obligation to negate Defendant’s claim of express consent through her allegations, and the Court can only dismiss Hodge’s TCPA claim on the consent defense if the “allegations in the complaint suffice to establish” consent. Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)). Nothing in the SAC, when construed in Hodge’s favor, shows that she consented to artificial or prerecorded messages.

Get it?

Even though the defendant might have a complete defense it is simply too early in the case for the Court to throw out the class action. As a result the defendant must litigate and deal with discovery demands– all of which gives Plaintiff’s counsel the opportunity to extort… er.. extract a high dollar resolution.

There are some tricks to get past the pleadings stage limitation on extrinsic consent evidence–Troutman Amin, LLP has earned great pleadings stage wins for example– but anytime there is a dispute of fact on consent you are DEFINITELY not going to win at the pleadings stage, and maybe not even at the MSJ stage. So be careful.

At the end of the day making outbound prerecorded or artificial voice calls (including voicemails) carries substantial risk. Make sure you know the rules of the game before playing!