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Class Certification Runs Out of Gas Over Consent Questions

The Northern District of Texas recently denied class certification in Rhonn Mitchell v. Toyota of Dallas, a putative class action arising from allegations that Toyota of Dallas (TOD) had violated the TCPA by sending marketing text messages to customers who had previously opted out of such communications. See 2025 WL 3013789 (N.D. Tex. Oct. 28, 2025). This case illustrates the teeth of the predominance inquiry and the importance of maintaining consent records, which are significant evidence even when held in varying formats.

Plaintiff Rhonn Mitchell alleged that, after purchasing a used car, he received repeated marketing texts from TOD despite alleging that he had opted out of receiving such messages. Alleging that TOD had sent over 16,000 texts to more than 1,500 customers after they had similarly opted out, Mitchell sought to certify both nationwide and Texas-only classes of consumers.

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Court Finds Political Texts Were Not Solicitations, Dismisses Do Not Call Claim

Each election cycle includes at least one cautionary tale about potential pitfalls of political calling. This one was no exception, as the Northern District of Illinois provided a helpful reminder that, depending on their content, political communications could be considered “solicitations” such that certain calling restrictions apply. See Evers v. CampaignSidekick, LLC, No. 24 CV 11067, 2025 WL 2896818 (N.D. Ill. Oct. 10, 2025).

The Plaintiff in Evers sued CampaignSidekick, a vendor that promotes voter outreach. Specifically, the Plaintiff asserted claims about: (1) using a prerecorded voice; and (2) calling numbers that were on the National DNC Registry.

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Another Florida Federal Court Finds Do-Not-Call Regulation Inapplicable to Text Messages

A judge in the Middle District of Florida recently dismissed Do-Not-Call claims under the TCPA, holding that “a text message is not a telephone call.” El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025).

The court explained that “it is only th[r]ough the rulemaking authority of the FCC that the voice call provisions of the TCPA have been extended to text messages. … However, a District Court is not bound by the FCC’s interpretation of the TCPA.” Id. at 1.

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Third Circuit Reaffirms Narrow Interpretation of TCPA, Holds State Legislators’ Constituent Communications Outside Statute’s Reach

The Third Circuit’s recent decision in Perrong v. Bradford, 2025 WL 2825982 (3d Cir. 2025), serves as an important reminder that the TCPA does not apply to all automated telephone solicitations. In a case of first impression, the Court held that telephone solicitations made by state legislators when performing legitimate legislative functions for the public benefit fall outside the statute’s scope — underscoring that courts continue to interpret the TCPA narrowly and recognize meaningful limits on its application.

The plaintiff received five prerecorded calls sent by the Legislative Communications Office of the House Democratic Caucus on behalf of Pennsylvania Representative Matthew Bradford. After discovery, the district court denied Bradford’s motion for summary judgment, rejecting his argument that the TCPA did not apply to his conduct and his alternative claims of qualified and Eleventh Amendment immunity. The Third Circuit reviewed the case under the collateral order doctrine based on the immunity claims.

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Fourth Circuit Affirms Exclusion of Ascertainability Expert and Denial of Certification

The Fourth Circuit, on appeal from the Eastern District of Virginia, recently upheld the denial of class certification due to the unreliability of the plaintiff’s expert opinion regarding the ascertainability of putative class members. See Davis v. Capital One N.A., No. 22-0903, 2025 WL 2445880 (4th Cir. 2025).

The plaintiff allegedly received multiple prerecorded messages to his cell phone regarding an unpaid debt owed by a different consumer from whom the phone number had been reassigned. The calls allegedly continued even after the plaintiff called to inform Capital One that it had been calling the wrong person. The plaintiff eventually filed suit, asserting claims on behalf of himself and a nationwide class of unnamed consumers who had also received calls to reassigned numbers.

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Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages

A Florida federal court recently dismissed Do-Not-Call claims, holding that “a text message is not a ‘telephone call.’” Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025).

In Davis, the plaintiff alleged that CVS sent him unwanted text messages in violation of regulations prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2).

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Florida Federal Court Finds Air Conditioning Company’s Pre-Hurricane “Here for You” Text Was a Solicitation

A Florida federal court recently denied a defendant’s motion for summary judgment in a putative class action, finding that the text message at issue was not “purely informational” but rather a solicitation for purposes of the plaintiff’s do-not-call claim. Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025).

Shortly before Hurricane Ian’s landfall in Florida, the plaintiff received the following text:

Mario’s AC is reminding you to consider flipping off the breaker to your AC unit during a hurricane. We are here for you. [Phone Number] STOP to end.

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District Court Limits the Impact of a “Stop” Text

The Northern District of Illinois recently validated a company’s narrow interpretation for the scope of communications a party opts out of when it revokes consent under 47 C.F.R. § 64.1200(d). In Stamper v. Manus-Northwestern Oral Health Center, Ltd., the court granted a defendant’s motion to dismiss confirming that the plaintiff did not adequately revoke consent to receive all marketing communications from the defendant after replying “stop” to one message instead of “STOPALL” as instructed to cease all communications. 2025 WL 2044093 (N.D. Ill. July 17, 2025). For companies with multipronged or multichannel communication streams, this decision provides validation that an opt-out from one category of message or specific campaign need not be read as a bar to all messages.

In Stamper, the plaintiff alleged they had “received texts advertising [defendant]’s services on at least a monthly basis from September 2022 to January 2023, despite repeatedly responding “stop” in an attempt to unsubscribe in the manner the messages instructed.” Id. at 1. The texts included notifications of open appointments, recall messages and reminders that a person was due for an appointment. Some of the texts were addressed to different individuals for whom the plaintiff had provided their number as the point of contact.

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McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts

A federal court recently dismissed Do-Not-Call claims after finding that, “based on a plain reading of the TCPA and its implementing regulations,” 47 U.S.C. § 227(c) “does not apply to text messages.” Jones v. Blackstone Med. Servs., LLC, No. 1:24-cv-01074, 2025 WL 2042764 (C.D. Ill. July 21, 2025).

In Jones, the plaintiffs alleged that they had received telemarketing texts about the defendant’s home sleep tests, despite their having placed their numbers on the National Do-Not-Call Registry and/or asking to be placed on the defendant’s Do-Not Call list. (Although they also made passing references to “calls” as well as “texts,” the court found that those allegations were neither well pleaded nor the crux of the claim.) They filed suit under 47 U.S.C. § 227(c), which concerns violations of Do-Not-Call rules.

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FCC Ends Quest to Amend its Definition of “Prior Consent” in the Wake of Eleventh Circuit Ruling

On July 14, 2025, the FCC issued an Order halting a proposed amendment to 47 CFR § 64.1200(f)(9) that would have narrowed the scope of communications that may be sent after a caller gives “prior express consent.” The FCC’s Order follows the recent decision in Insurance Marketing Coalition, Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025), which vacated a change to that rule adopted by an FCC Order issued in late 2023.

Prior to the 2023 FCC Order, the phrase “prior express consent” under this regulation had the same meaning as the common law concept of consent. Ins. Mktg. Coal., 127 F.4th at 313. Specifically, “permission that [was] clearly and unmistakably granted by actions or words, oral or written” before the marketing call was received. Id. (internal citations omitted)

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