We often remark that the TCPA can, and does, affect businesses across industries. A once-popular New York City restaurant learned that lesson the hard way, when a Southern District of New York Magistrate Judge recommended certifying a no-consent telemarketing class in George v. Shamrock Saloon II, LLC, No. 17- Civ.-6663 (S.D.N.Y. Aug. 7, 2019).

The George decision involves a familiar set of facts for no-consent telemarketing cases. The defendant claimed that it received consent to call the plaintiff, and others, through written signup sheets and its website, while the plaintiff claimed that the defendant’s records fail to prove that it had prior express written consent to text her or other putative class members. The Magistrate Judge ultimately reasoned that because the class was defined as individuals for whom the defendant did not have evidence of consent, the Rule 23 factors were satisfied. The Judge brushed aside the defendant’s claim that consent was nevertheless an individualized inquiry, and ruled that lack of consent could be decided on a class-wide basis given the absence of documentation.

So essentially, the court held that a lack of system proof meant that consent could be adjudicated on a systemic basis. Welcome to TCPAWorld.

George thus follows a disturbing line of cases that certify no-consent classes based on a lack of document evidence of prior express consent to overcome commonality and predominance objections. The problem with this line of cases is that it largely ignores the fact that prior express written consent can be proven in a variety of ways that still require individualized mini trials, even in the absence of some systemic proof of consent. For example, a defendant can offer affidavits and testimony stating that it only called or texted individuals who signed up to receive such messages voluntarily, and provide exemplar disclosures that would have been used at various times. A plaintiff is free to rebut that evidence with contrary testimony, but the ultimate resolution must be determine on a plaintiff-by-plaintiff basis after making credibility and reliability determinations. That type of individualized inquiry is not well suited for class-wide adjudication.

The Magistrate Judge’s recommendation is, however, a reminder of the importance to preserve consent information to any business that relies on direct outreach to consumers as part of its marketing strategy. At least some judges are willing to certify a no-consent class based on a perceived lack of documentary evidence showing consent, even though in reality there are multiple ways of proving it that require individualized inquiries. And if you wait until you’re sued to start preserving consent-related evidence, it may be too late to avoid class certification.