In a recent decision, the Northern District of Texas denied a motion to certify a class in a case involving allegations that a car dealership sent telemarketing text messages to consumers who had previously opted out, finding that individual questions of consent would predominate over common issues.
Plaintiff, a consumer who purchased a vehicle from the defendant dealership, alleged that he and over 1,500 other customers received unwanted telemarketing text messages after opting out of further communications. Plaintiff sought to certify two classes—one nationwide and one limited to Texas residents—comprising individuals who received multiple telemarketing messages after opting out, with specific language in the messages and a defined time period after the opt-out.
Individualized Consent Issues
The court’s decision turned on the predominance and cohesiveness requirements of Rule 23(b). While plaintiff proposed using call logs and internal do-not-call lists to identify class members, the court found that this methodology failed to account for the possibility that some individuals may have reconsented to receive messages after opting out. The defendant presented evidence that putative class members could have provided renewed consent through various means, such as inbound calls, dealership visits, or third-party platforms.
A sample review of phone numbers revealed that many had activity suggesting reengagement or consent, or were business numbers not subject to the TCPA. The plaintiff’s expert methodology did not reliably distinguish between consumers and businesses or account for all forms of consent, meaning that determining class membership would require individualized inquiries.
First, Verkhovskaya’s methodology does not consider that some individuals may have provided some sort of express consent to begin receiving text messages again after opting out of receiving them. TOD explained that putative class members could have reconsented to messaging in a variety of ways during the course of business with the Defendant. Def.’s [*8] App. ¶ 95, Expert Report of Margaret Daley. These other methods of consent include inbound calls by putative class members, visits to a TOD dealership, and third-party platforms such as Kelly Blue Book, Cars.com, or Truecars.com. Def.’s Br. 6-7 [52].
Second, TOD’s expert sampled 309 phone numbers belonging to putative class members and found at least 256 numbers have activity on TOD’s internal work notes, indicating they may (1) have voluntarily reengaged with TOD or otherwise expressly consented to receive additional telemarketing messages, (2) be a business number not subject to TCPA or (3) otherwise do not fit in Mitchell’s proposed class definition. Def.’s Br. 3. Verkhovskaya’s methodology does not consider these other methods of consent or how to reliably distinguish business phone numbers not subject to TCPA from consumer phone numbers. Therefore, the consent issue would necessitate individual inquiries to determine whether a putative class member provided consent for TOD to send telemarketing communications. Additionally, because this individual issue has the potential to separate class members from each other, the class lacks the cohesiveness necessary for the Court to certify [*9] a class under Rule 23(b)(2).
Attempts to Amend the Class Definition
Plaintiff attempted to address the consent issue by amending the class definition to exclude individuals with signed written agreements reconsenting to messages. However, the court found this insufficient, as the methodology still could not reliably separate business numbers from consumer numbers or account for all forms of consent.
