District Court (Ill.) Recognizes Split of Authority in Certifying TCPA Class Actions; Says Individualized Inquires Still Predominate Even Where Plaintiff Excludes Classmembers Who Gave Prior Express Consent

In Chapman v. First Index, Inc., 2014 WL 840565 (N.D.Ill. 2014), Judge Ellis denied class certification in a TCPA-fax case.  Although Judge Ellis recognized the split of authority, and although the Plaintiff attempted to define the class to exclude those who had provided prior express consent, Judge Ellis still found the class unmanageable due to individualized inquiries.

Courts are split on whether the issue of individualized consent renders a TCPA class uncertifiable on predominance and ascertainability grounds, with the outcome depending on the specific facts of each case. See Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 328 (5th Cir.2008) (“[T]here are no invariable rules regarding the suitability of a particular case filed under this subsection of the TCPA for class treatment; the unique facts of each case generally will determine whether certification is proper.”); G.M. Sign, Inc. v. Brink’s Mfg. Co., No. 09 C 5528, 2011 WL 248511, at *8 (N.D.Ill. Jan. 25, 2011) (declining to certify proposed TCPA class based on issues of individualized consent, distinguishing cases in which courts have certified TCPA cases and noting that “[o]f course, the question whether common questions predominate is necessarily a case-specific one”). Where a defendant has set forth specific evidence demonstrating consent and the plaintiff has presented no method by which consent or lack thereof can be ascertained on a class-wide basis, courts have declined to certify a class. See, e.g., Gene & Gene, 541 F.3d at 328–29 (reversing district court’s certification of a TCPA class where the defendant presented evidence that some of the faxes it had sent had been solicited, but the determination of which faxes were solicited required a case-by-case determination); Jamison, 290 F.R.D. at 107–09 (finding individual issues predominated and that class was unascertainable where defendant introduced evidence that it elicited consent from a large percentage of potential class members so that the court would have “to conduct a series of mini-trials to determine the population of the class and to determine liability”); Vigus v. S. Illinois Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 235–36 (N.D.Ill.2011) (proposed class was not sufficiently ascertainable, as “determining who would be in a class narrowed to an appropriate size could not be done by reference to objective criteria applied class-wide and would be an unmanageable task”); Brink’s Mfg. Co., 2011 WL 248511, at *7–8 (individualized issues predominated where the defendant submitted evidence that it obtained consent from all fax recipients and the court would have been required “to engage in a class-member-specific inquiry to determine whether each recipient did indeed give permission or have an established business relationship with Defendant at the pertinent time”). On the other hand, in those cases where the defendant has not proffered specific evidence of consent and instead the issue of consent is merely speculative, courts have certified TCPA classes. See, e.g., Chapman v. Wagener Equities, Inc., No. 09 C 07299, 2014 WL 540250, at *5 (N.D.Ill. Feb. 11, 2014) (“[T]here is no reason to believe in this case that including the requirement of lack of consent in the class definition would materially reduce the scope of the class. There is no evidence in the record, nor do the defendants offer any now … that any of the alleged recipients of the WEI fax consented to receipt of the fax.”); Savanna Grp., Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *3–4 (N.D.Ill. Jan. 4, 2013) (rejecting consent objection to class definition where defendant did not offer specific evidence of consent); see also Brink’s Mfg. Co., 2011 WL 248511, at *9–10 (distinguishing cases that certified TCPA classes, noting that the “theme of these cases” was that the “defendant had distributed faxes in such a way that consent was not an issue”).  ¶  Chapman’s proposed class expressly excludes those who provided First Index with “their prior express invitation or permission” to receive a fax. But First Index has submitted uncontroverted evidence that it obtained consent prior to sending faxes to the contacts it had in its database. Its former employees testified that this was their general practice, membership agreements specifically provided for communications by fax, and notes in First Index’s database indicate that at least certain contacts requested fax communications. First Index thus argues that the Court would be required to engage in an individualized inquiry to determine not only membership in the class but also the merits of the case. Faced with First Index’s evidence regarding consent, Chapman has not responded with any suggested objective criteria by which class membership could be readily ascertained or a common method of proof by which lack of consent could be established on a class-wide basis. Instead, Chapman argues that consent is an affirmative defense for which First Index has the burden of proof and that even if consent existed, First Index violated the TCPA by failing to include a proper opt-out notice. But the need for individualized inquiries with respect to an affirmative defense may still defeat predominance. See Jamison v. First Credit Servs., Inc., No. 12 C 4415, 2013 WL 3872171, at *6 (N.D. Ill. July 29, 2013) (“Individualized issues necessary to decide an affirmative defense may predominate so as to prevent class certification. For purposes of class certification, it is [plaintiff’s] burden to prove that they do not.” (citations omitted)); Vigus, 274 F.R.D. at 237 (“That [the defendant] may carry the burden of proving some of these individual questions as part of an affirmative defense does not render those questions any less predominant in this litigation.”). Further, Chapman has not disavowed the limitation in his class definition that makes consent an issue, thus rendering his argument regarding opt-out information irrelevant for purposes of class certification. Cf. Saf–T–Gard Int’l, Inc. v. Vanguard Energy Servs., LLC, No. 12 C 3671, 2012 WL 6106714 (N.D.Ill.Dec. 6, 2012) (“Should [plaintiff] wish to press its theory that opt-out notices are required even when a fax is not unsolicited, it must move to amend the complaint and the class definition.”).  ¶  Without any meaningful response from Chapman and based on the record before it, the Court agrees with First Index that individualized inquiries surrounding consent preclude certification. Chapman has not proposed any generalized way to determine class membership, let alone liability. Instead, like in Gene & Gene and Brink’s Manufacturing, because First Index has submitted specific evidence suggesting that it obtained consent prior to sending the faxes, the Court would be required to engage in case-by-case inquiries to determine whether each fax was transmitted without the prior express invitation or permission of the recipient. See Gene & Gene, 541 F.3d at 328–29; Brink’s Mfg. Co., 2011 WL 248511, at *8–10. Because the proposed class fails Rule 23’s ascertainability and predominance requirements, class certification is denied