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.
The court denied certification under both Rule 23(b)(2) (cohesiveness for injunctive relief) and (b)(3) (predominance and superiority for damages). With regard to predominance, the court found that plaintiff’s reliance on testimony by his expert — who proposed identifying class members from TOD’s records and do-not-call lists — was insufficient to show that common issues predominated. Specifically, the court held that the expert’s methodology “[did] 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.” In fact, TOD’s expert presented evidence showing that some recipients (and putative class members) had provided TOD with a new consent — in the form of either express consent or an inquiry-based established business relationship — via inbound calls, dealership visits or through third-party platforms. Such subsequent permission negated the validity of any claim for those recipients. Accordingly, the court held, individual inquiries would be necessary to determine consent for each class member based on their specific interactions with TOD, defeating predominance.
Also significant was the court’s determination that plaintiff’s expert’s methodology did not reliably distinguish business numbers from residential numbers. Because plaintiff’s do-not-call claims were only valid as to residential numbers, see 47 U.S.C. § 227(c), that failure threatened to include within the class call recipients that did not have a valid claim.
This ruling offers a roadmap for defendants challenging class certification where records may reflect subsequent consent or engagement by putative class members and the importance of ensuring that only valid claimants fall within the putative class definition.
If the case proceeds as an individual action, plaintiff may yet face another dispositive obstacle on whether the TCPA even applies to text messages, which has been the holding of several recent federal courts. See, e.g., El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759 (M.D. Fla. Oct. 24, 2025); Davis v. CVS Pharm., Inc., 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025); Jones v. Blackstone Med. Servs., LLC, 2025 WL 2042764 (C.D. Ill. July 21, 2025).
The ever-evolving body of case law regarding the TCPA can present challenges for continued compliance. Companies with questions regarding their communication practices should consult with experienced privacy counsel to help ensure best practices are in place.
