TCPA Class Allegations Stricken Due to “Unique Defenses Peculiar to Plaintiff’s Case”

The Northern District of Illinois recently clarified that a “revocation class” that defines a putative class as those having made “a request to stop calling [their] number” does not satisfy Rule 23(b)(3)’s predominance requirement. This memorandum opinion again highlights the significance of individualized issues of consent in a TCPA class certification process.

In Tillman v. The Hertz Corp., No. 16 C 4242, 2019 WL 3231377 (July 18, 2019), the Plaintiff filed a putative class action and alleged that the Defendant made multiple “robocalls” without obtaining his consent, and also failed to stop calling after he allegedly requested that it remove his number from its call database.  In reviewing this allegation, the court was struck by the “obvious predominance of individual facts concerning consent and revocation” and rejected the idea that this could be the basis for certification of a class.

It was undisputed that the Defendant had received the Plaintiff’s phone number from his mother, who had rented a car from the Defendant, as an emergency contact number. When Plaintiff’s mother did not return the Defendant’s car on time, the Defendant made multiple calls to the Plaintiff’s number in an attempt to retrieve the rental car.  Defendant eventually informed the Plaintiff that it would report the rental car as stolen if the car was not returned. Plaintiff’s mother returned the rental car twelve days later, at which time Defendant’s calls to him stopped.

The Plaintiff first defined the class he sought to represent in his 2016 Complaint as:

All persons who, on or after April 12, 2012, defendant (or some vendor on its behalf) called a cellular telephone number using predictive dialing equipment and/or a prerecorded or artificial voice where defendant did not obtain the phone number called from the called party (for example, where the number was obtained through skip tracing or captured by the Defendant’s equipment from an inbound call, or Defendant was calling a wrong number).

The court, when denying Defendant’s Motion for Summary Judgment in 2018, noted that this proposed class was highly unlikely to survive class certification because many material facts were in dispute. For example, the parties contested whether Plaintiff’s mother had expressly consented to receiving calls at Plaintiff’s number by signing the rental agreement and whether Plaintiff had verbally instructed the Defendant to stop calling his number.

Following the summary judgment ruling, Plaintiff amended his complaint to revise the definition of the putative class as:

All noncustomers whose cellphone Hertz or some other vender on its behalf called on or after April 12, 2012, using a prerecorded voice and/or dialing equipment of the type used to call plaintiff, where such call was placed after a request to stop calling that phone number.

This amendment did not save the class allegations. Instead, the court found that Plaintiff still could not adequately represent the proposed class members.  Rather, Plaintiff was deemed an “atypical” example of the proposed class because the scope of consent under the TCPA depends on which type of contract was executed by Plaintiff’s mother and the type of calls made to Plaintiff’s number determines whether the calls are permissible.

Significantly, because the parties continue to contest the base question of whether the Plaintiff had revoked the consent given by his mother, the court determined that any proposed “revocation class” inevitably would lead to a mini-trial for each class member, focusing on whether each plaintiff had made a request to stop calling their number. As the court found no precedent supporting certification of such a class, it held that the individualized consent issue in the proposed class “destroys any notion that a class action is superior to other available methods for efficiently resolving the controversy.”  This case is a reminder that in many areas of TCPA litigation, the facts in dispute are individualized, and thus not well suited for class actions.