In a TCPA case based on robocalls, the defendant argued that Commonality and Predominance could not be satisfied, based on (a) Article III standing, and/or (b) the affirmative defense of consent.

With respect to consent, the Court found that the issue was likely susceptible to class-wide proof: “Whether the issue of express consent under the TCPA is a common or individual question depends on the facts of a particular case, such as the degree of variation in the form employed for obtaining permission. For instance, in the context of unsolicited fax advertisements, which are similarly proscribed by the TCPA, where the fax sender purchased a contact list from a third-party vendor and made no attempt to seek permission from any of the recipients before sending the fax advertisement, there is a generalized, class-wide manner of proving lack of consent. When the question of what suffices for consent or the manner in which consent is given is likely to vary from recipient to recipient, the court must make transaction-specific inquiries that are the hallmarks of an issue that requires individual scrutiny. Advisors Ignite claims that there are numerous ways consent could have been established between it and the alleged call recipients. As evidence, Advisors Ignite offers the fact that its website allows for users to provide consent to be contacted and that, particularly, in a previous case where Van Elzen asserted a similar claim against another defendant, there was enough evidence to support a finding that Van Elzen had agreed to being contacted in that case. This, the argument goes, tends to show that Van Elzen has a history of providing online consent to receive telephonic business solicitations. Even if Van Elzen has a history of providing online consent, and other class members had the option to provide consent online, Advisors Ignite has not presented any evidence that Van Elzen, or any class member, provided consent to prerecorded voicemail messages in this case. A history of providing consent to other kinds of messages in other cases does not suggest that the consent defense is not susceptible to class-wide proof here. Unlike the Junk Fax Act amendment to the TCPA, the prohibition of prerecorded voice messages without prior written consent does not have exceptions for situations where the sender has an established business relationship with the recipient. For this reason, Advisors Ignite’s reliance on cases which involved consent to receive fax solicitations, is misplaced. The availability of other ways in which class members could have given consent does not suggest that this particular defense presents an individual question when Advisors Ignite has not suggested that there was in fact any variation in the manner in which Advisors Ignite obtained consent from different call recipients. Similarly, Advisors Ignite purchased contact lists from third-party vendors, namely AccuPoint Data Solutions and Discovery Data. But the fact that Advisors Ignite obtained its contacts from several sources does not suggest that consent was provided in different ways. To the contrary, the undisputed evidence suggests that neither Advisors Ignite, nor the vendors from whom it obtained the lists, ever sought consent to send ringless voicemail messages, presumably because they did not know consent was required under the TCPA. The court is therefore satisfied that there is a generalized, class-wide manner of proving lack of consent.”

On the other hand, with respect to Article III standing: “”Advisors Ignite contends that Van Elzen has not shown that Plaintiff suffered an injury in fact that would be cognizable under Article III. But in his amended complaint Van Elzen alleged the unauthorized prerecorded call that Plaintiff received from Defendants has harmed Plaintiff Van Elzen in the form of annoyance, nuisance, and invasion of privacy, occupied his phone line, and disturbed the use and enjoyment of his phone, in addition to the wear and tear on the phone’s hardware (including the phone’s battery), the consumption of memory on the phone. This is enough to support a finding that Van Elzen has standing to bring this action under Article III…. But the question is not simply whether Van Elzen was harmed; in order for Van Elzen’s motion for certification of a class under Rule 23 to be granted, he must show that the members of the class he seeks to certify were similarly harmed…. Van Elzen assumes that every insurance agent who received just one ringless voicemail from Advisors Ignite suffered the same harm he claims to have sustained as a result of receiving a message offering a way to substantially increase his income. That seems doubtful. Advisors Ignite did not contract with SlyBroadcast because it wanted to harass or annoy potential customers. It no doubt thought that some number of insurance agents that received its message would be interested in learning of the services it offered that could significantly increase their income. And presumably some of the recipients of the messages it sent were happy to receive them. They may have even followed up by calling Advisors Ignite. Some may in fact have benefitted from receiving the information Advisors Ignite provided. Even those that did not call may have felt unharmed by learning of what was offered and were not annoyed or harmed. They may well have found the information worth the little effort it takes to delete a message after it is received.” The Court concludes, “at least as to the issue of standing, common issues of fact do not predominate. If many or most of the putative class members could not show that they suffered an injury fairly traceable to the defendant’s misconduct, then they would not be able to recover, and that is assuredly a relevant factor that a district court must consider when deciding whether and how to certify a class. In this case, unnamed class members’ standing poses a powerful problem under Rule 23(b)(3)’s predominance factor. This problem will necessarily arise here because at some point before it can award any relief, the district court will have to determine whether each member of the class has standing. That is an individualized issue, and it is one that Van Elzen has not accounted for or considered in arguing that common issues predominate over individualized issues. He has simply assumed that every recipient of a single voicemail from Advisors Ignite suffered the same harm he did. The assumption might be reasonable if the same message was sent over and over to random individuals with no connection to the insurance business. But this was essentially a one-time message targeted to individuals most likely to have some interest in the information conveyed.”

 

Van Elzen v. Advisors Ignite, No.22-859, 2024 WL 195473 (E.D. Wis. Jan. 18, 2024).