In Shamblin v. Obama for America, 2015 WL 1909765 (M.D. Fla. 2015), Judge Covington denied class certification in this TCPA litigation.  First, Judge Covington found no commonality amongst the putative classmembers.

Based on the current record, the Court determines that there can never be common answers to the questions of whether (1) the telephone number dialed was assigned to a cellular telephone at the time of the call and (2) whether the subscriber consented to be called.2 There is no “classwide” proof on these outcome-determinative issues. Notably, Shamblin is not entitled to a presumption that all class members failed to consent and Defendants have a constitutional right to a jury determination as to whether any person consented to receiving calls to their cellular telephone. See Rink v. Cheminova, Inc., 203 F.R.D. 648, 652 (M.D.Fla.2001).  Shamblin’s ability to list some common questions does not satisfy commonality, because individualized proof will be required for each and every plaintiff, which defeats the purpose of class certification. See Balthazor v. Cent. Credit Servs., Inc., No. 10–62435, 2012 U.S. Dist. LEXIS 182275, at *16, 2012 WL 6725872 (S.D.Fla. Dec. 27, 2012) (denying class certification of TCPA case under commonality and predominance prongs of Rule 23 because “resolution of each putative class member’s TCPA claim would necessarily involve an individual assessment of whether each class member consented to receive telephone calls on their cellular telephone numbers.”); Hicks v. Client Servs., Inc., No. 07–61822, 2008 U.S. Dist. LEXIS 101129, at *20, 2008 WL 5479111 (S.D.Fla. Dec. 11, 2008) (predicating denial of class certification in TCPA case on plaintiff’s failure to establish Rule 23(a)(2) commonality because “consent is an issue that would have to be determined on an individual basis at trial.”).

Second, Judge Covington found no predominance because discovery had not weeded out classmembers who would have individualized inquiries regarding consent.

Although Shamblin has discussed TCPA cases in which class certification has been granted, those cases are easily distinguishable. For instance, in Manno, the district court determined that the issue of consent did not preclude class certification because “the way in which the discovery was performed weeded out the individuals who may have consented to be called.” 289 F.R.D. at 686. Thus, in Manno, the court did “not have to inquire as to whether each putative class member may be subject to an independent consent defense.”  In contrast, in the present case, the issue of consent remains to be individually determined as to each putative class member. In Gene & Gene LLC v. Biopay, LLC, 541 F.3d 318 (5th Cir.2008), the district court granted a motion for class certification in a TCPA even though the defendant noted that individual inquiries concerning consent remained to be decided. The Fifth Circuit reversed finding that “the district court abused its discretion in certifying the class.” Id. at 329. The Fifth Circuit persuasively emphasized that “the predominant issue of fact is undoubtedly one of individual consent” and if “there is no class-wide proof available to decide consent,” then “only mini-trials can determine this issue.”   Here, the Court finds that predominance is not satisfied based on the looming issue of consent. Shamblin alleges that Defendants’ course of conduct commonly, and adversely, affected the entire class. (Doc. # 146). However, the TCPA “allows consent to be given orally, in writing, electronically, or by any other means, as long as the consent is expressly given to the particular entity making the call.” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir.2014); 137 Cong. Rec. 30,822 (1991). Therefore, the evidence necessary to establish Shamblin’s claim is not common to both Shamblin and all class members. Individualized inquiries into consent (including where, how, and when) will predominate. Although affirmative defenses do not automatically preclude certification of a class, the consent issue in this case presents individual fact inquiries precluding class certification.

Thus, the Court concluded that superiority was lacking, too, because the complex management issues involving individualized questions of consent rendered the class action device not the superior procedural mechanism to adjudicate a mass action.