District Court Denies Class Certification in TCPA Case; Finds No Injury Possible Where Call Recipients Consented to Calls, Even if Consent Not in Writing

By Joseph C. Wylie II,  Andrew C. Glass, Gregory N. Blase, Molly K. McGinley, and Lexi D. Bond

The Northern District of Illinois recently refused to certify a class in a case brought under the Telephone Consumer Protection Act, 47 U.S. Code § 227 (“TCPA”), on the grounds that the class could not include members who lacked Article III standing, and that determining whether individual class members had standing would lead to a multiplicity of mini-trials. See Christopher Legg et al. v. PTZ Insurance Agency LTD, et al., Case No. 14-C-10043. The decision was based in part on the Court’s finding that class members could not have suffered a concrete injury under Spokeo v. Robins (previously discussed here) if they consented to the calls, irrespective of the TCPA’s requirement that “advertising” calls require express written consent.  Thus, the Court granted the defendants’ motion to strike class allegations and denied plaintiffs’ cross-motion to certify a class.

Plaintiffs Christopher Legg and Page Lozano brought a putative class action lawsuit against Pethealth Inc. (“Pethealth”), which offers consumer services related to pet adoption and pet insurance through various subsidiaries, including co-defendant PTZ Insurance Agency LTD (“PTZ”). PTZ offers a 30-day free gift of pet insurance to those who adopt pets at PTZ’s partner animal shelters. During the adoption process, customers who want to receive the free gift must provide their email address and opt-in to receiving communications from Pethealth and PTZ. Adopters fill out additional paperwork with contact information, and the shelter informs them that unless they opt-out, their personal information may be shared with third parties for marketing purposes. As part of the free insurance program, PTZ sends two reminder emails and two prerecorded calls. Plaintiffs alleged that the prerecorded calls violated the TCPA because the calls constituted advertisements, and defendants had not received written consent from the call recipients.

In ruling on defendant’s motion to strike the class allegations, and plaintiffs’ cross-motion to certify a proposed class, Judge Gettleman first analyzed the four requirements of Federal Rule of Civil Procedure 23. To certify a class, plaintiffs must meet all four requirements: numerosity, commonality, typicality, and adequacy of representation. The calls in question were sent to nearly 350,000 telephone numbers, which the Court found sufficient to establish numerosity. He also found that the case met the commonality and typicality requirements, because every potential class member, including the proposed class representatives, gave his or her contact information in a similar manner and received the same prerecorded calls.

Yet, the Court held that plaintiffs could not satisfy the predominance requirement of Rule 23(b)(3), namely that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” The Court noted that the issue of whether each class member consented to receive calls would require inquiries into what occurred during each adoption process. Plaintiffs argued that defendants’ calls constituted advertising under the TCPA, which requires written consent of recipients, and the parties agreed that none of the proposed class members gave consent in writing. But the Court held that whether or not the calls constituted advertising, class members who gave express consent and expected to receive the calls could not possibly have been injured by the calls. If the class members agreed to receive the calls, stated the judge, they lack a “genuine controversy” under Spokeo. Finding that issues of individualized consent predominated, Judge Gettleman declined to certify the class.

Courts have issued inconsistent and contradictory decisions applying Spokeo to TCPA class actions (discussed previously here and here), both as to whether particular conduct causes concrete harm, and whether that question can be resolved on a class-wide basis, and it remains to be seen how these inconsistencies will be resolved.