Spotlight on Consent: Individualized Questions of Consent Preclude Class Certification

Despite the overwhelming focus this year on the issue of what constitutes an automatic telephone dialing system, defendants should not ignore other defenses that could substantially gut TCPA class action lawsuits. Ten years ago, in a seminal case, the Fifth Circuit held that TCPA class actions could not be certified unless there is common proof on the issue of consent. See Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 329 (5th Cir. 2008). Earlier this fall, a federal judge in the Northern District of Illinois reminded defendants that individualized questions of consent defeat class certification in TCPA class action suits.

In Tomeo v. Citigroup, Inc., Eduardo Tomeo alleged that Citi used an automated telephone dialing system to contact accountholders in violation of the TCPA. He sought to certify two classes: (1) a “cease and desist” class of plaintiffs who continued to receive calls or texts after they requested not to be called, and (2) a “wrong number” class of those who continued to receive calls after telling Citi it had called the wrong number. Citi argued that the court should not certify either class because individual issues concerning consent predominated. Citi supported its argument with (1) evidence that establishing that a significant percentage of the putative class consented to receive calls, (2) evidence that three different types of computerized records contain information relevant to whether Citi has the necessary consent to contact a given phone number, and (3) expert reports noting that “the only way to determine whether an individual consented to calls would be to individually review each of the accounts.” 2018 U.S.Dist.LEXIS 166117, at *7.

The court determined that the issue of consent was decisive and found that “because individual questions of consent predominate, Tomeo has not carried his burden of establishing that common issues predominate.” 2018 U.S.Dist.LEXIS 166117, at *27. The court reasoned “[t]his is not a situation where individuals filled out standard forms, checking whether or not they consent to contact—there is no one word that [the plaintiff’s expert] could search to determine the consent status for each potential class member at the time of each potential violation.” Id. at *33. “[T]he Court would still need to conduct individual inquiries into whether the interactions described in [the computerized records] constituted a change in the status of consent.” Id. at 35. The named plaintiff’s specific situation also informed the court’s decision. To determine whether Citi had consent to call Tomeo, the parties reviewed the three different types of computerized records kept for Tomeo and engaged in three depositions—and yet remained in dispute as to whether consent existed. “[A] fact finder would need to sort through this evidence to determine whether Citi had consent to place calls to Tomeo,” explained the court. Id. at 36. Plaintiff argued that even if consent requires some individual attention, it is not significant enough to prevent other common issues from predominating. The court rejected plaintiff’s argument and denied class certification concluding “consent is inextricably intertwined with the primary issue of liability to the point where it predominates over the other common issues in the case.” Id. at 41.

Tomeo demonstrates that while a dispute as to whether the named plaintiff’s consent existed could defeat summary judgment, it can also be used as a sword to defeat class certification. Of course, TCPA defendants must also be sure to set forth specific evidence showing that a significant percentage of the putative class consented to the communication at issue before a court can find that issues of individualized consent predominate over any common questions of law or fact.