To me certification in TCPA class actions comes down to one issue– did the numbers all come from a single identical source, or multiple sources.

If the latter, the case cannot be certified. If the former, sometimes it can be certified.

The reason–as explained best by the Fifth Circuit Court of Appeals in Gene & Gene v. Bippay— is that consent is generally the central issue in a TCPA case. So, if numbers came from multiple sources (vendors, websites, versions of websites) you cannot certify the case because different evidence will be needed for different portions of the class on the issue of consent.

This is straightforward to me.

Still courts struggle with this concept, and you occasionally see #biglaw screw up with a resulting certification of a multi-source TCPA class action.

Well things went the right way in Lyngaas v. Solstice, 2025 WL 2689015 (E.D. Mich. Sept. 19, 2025.)

There the court noted consent could not be determined on common evidence across the class and swiftly denied certification as a result:

Most significantly, identifying which individuals and entities receiving the fax had prior “contact” with Solstice would require fact-intensive, individualized inquiries. This is made obvious by Plaintiff’s shifting definition of “evidence of contact” between its initial motion and reply to briefs to account for further evidence of contact between Solstice and plaintiff’s listed putative class members and Solstice’s asserted deficiencies in the class definition. The modification resulted in Plaintiff’s removal of thousands of putative class members.

There are a myriad of ways for Solstice to evidence contact, aside from those included in Plaintiff’s initial and current definitions, as Solstice has shown through concrete evidence. 3 Solstice has done more than raise a mere possibility that members of the class as defined by Plaintiff consented to receiving the challenged fax. As Plaintiff concedes, all of the recipients of the subject fax were Solstice in-network providers. (ECF No. 116 at PageID.4953, 4959-60.) This raises far more than “the possibility” that they consented to being contacted by Solstice, including by facsimile.

Identifying “who is in and who is out” would require Solstice to provide any evidence it has regarding its relationship to each potential class member and the Court’s evaluation of that individualized evidence. This “would result in the exact ‘myriad mini-trials’ that Rule 23(b)(3) seeks to prevent.” 

Like I said. Straightforward.

Absolutely the correct analysis and result. Good job to all involved!