Note: This article originally appeared on, Drinker Biddle's blog dedicated to the FCC's TCPA rules.

Once again, a defendant has defeated a TCPA class certification motion on the ground that the liability inquiry would require individualized inquiries into class members’ consent to receive calls, precluding a finding of predominance.

In Connelly v. Hilton Grand Vacations Co., LLC, — F.R.D. —-, Case No. 12CV599 JLS (MDD), 2013 WL 5835414 (S.D. Cal. Oct. 29, 2013), plaintiffs sued a resort properties operator alleging that its third party marketer violated the TCPA by using an ATDS to make telemarketing calls to cell phones without obtaining prior express consent.  Id. at *1.  Plaintiffs sought to certify a sprawling class of all recipients of any of 37 million calls to 6 million different numbers over a four-year period, and sought statutory damages for this would-be class “that could total between $18 and $54 billion.”  Id. at *1.

HGV opposed certification for several reasons, including that plaintiff failed to satisfy the commonality and predominance requirements because determining putative class members’ consent must “be dealt with on an individual basis.”  Id. at *3.  HGV explained that it limits marketing calls to those who have signed up for its loyalty rewards programs and those who provide their cell phone number in the course of reserving a room at one of its hotels.  Id.  In either instance, class members provided cell phone numbers to HGV in variety of ways and under varying circumstances: online, phone, paper correspondence, or via travel agencies.  Id. at 3.  Plaintiffs countered that the issue could be addressed on a class basis because the issue boiled down to whether providing the number to Hilton under any of these various circumstances constituted consent, regardless of the method.  Id.

The court agreed with HGV and denied certification because Plaintiffs did not “advance a viable theory employing generalized proof to establish liability with respect to the class involved.”  Id. at *2.  Acknowledging that TCPA actions are “not per se unsuitable for class resolution,” the Court nevertheless observed that class certification is “warranted only when the unique facts of a particular case indicate that the individual adjudication of the pivotal element of express consent is unnecessary.”  Id.  In other words, the court determines predominance based on whether it can administer “a class-based trial on the merits.”  Id.

The court found that class members’ “sufficiently varied” experiences in contacting HGV “provide[d] dissimilar . . . expressions of consent.”  Id. at *3.  For example, those who communicated by phone and talked to an HGV representative may have received different information about how HGV would use their cell phone numbers from those who completed an online application.  Id.  There existed then “a non-trivial possibility that some class members expressed consent in a manner . . . colored by these circumstances.”  Id.  The court concluded that because “[t]his diversity suggests consent should be evaluated individually,” the predominance requirement was not satisfied, and the court denied certification.  Id. at *4.

The decision is the latest in a growing line of cases in which class certification in a TCPA lawsuit is denied for failure to satisfy the predominance requirement because of individualized issues of consent.  See, e.g., Gannon v. Network Tel. Servs., Inc., Case No. 12-9777, 2013 WL 2450199 (C.D. Cal. June 5, 2013) (denying certification because issue of consent demanded individual inquiry into each potential member’s consent and court “would have to hold ‘mini-trials’ to determine who received unauthorized text messages); Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 106-07 (N.D. Ill. 2013) (“[I]ssues of individualized consent predominate when a defendant sets forth specific evidence showing that a significant percentage of the putative class consented to receiving calls on their cellphone. . . .  [Because] the Court would have to conduct a series of mini-trials to determine the population of the class and to determine liability[,] . . . individual issues predominate over common ones.”) reconsideration denied, No. 12 C 4415, 2013 WL 3872171 (N.D. Ill. July 29, 2013); G.M. Sign, Inc. v. Brink’s Mfg. Co., 09 C 5528, 2011 WL 248511, at *9 (N.D. Ill. Jan. 25, 2011) (denying class certification because determining class membership would require “a series of mini-trials”); Hicks v. Client Servs., Inc., 07-61822-CIV, 2008 WL 5479111, at *8 (S.D. Fla. Dec. 11, 2008) (denying class certification in TCPA action because “ultimately [issue of] consent . . . would have to be determined on an individual basis at trial”); Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D. Pa. 1995) (denying class certification where “[d]etermining a membership in the class would essentially require a mini-hearing on the merits of each case”).

Looking at these cases as a whole, it is hard to see how a TCPA case can be certified for class treatment where class members’ consent is an issue.

A copy of the decision is available here.

Source: TCPA Blog