In Conrad v. General Motors Acceptance Corporation, here, Judge Godbey denied Plaintiff’s Motion for Class Certification in a TCPA cellular telephone case, holding that issues of consent presented individualized inquiries. Judge Godbey explained:
Even if the Court were to have found the putative class sufficiently numerous and that it satisfied the remaining Rule 23(a) requirements, the class would fail under both Rule 23(b)(2) and Rule 23(b)(3) because individual issues preclude certification. Ally argues that individualized issues of consent divide the class in such a way that certification is improper. The Court agrees. Under Rule 23(b)(3), the Court must identify the substantive issues that will control the outcome, assess which issues will predominate, and then determine whether the issues are common to the class – a process that prevents the class from degenerating into a series of individual trials. Gene & Gene LLC, 541 F.3d at 326. In making the predominance inquiry, the Fifth Circuit has counseled tat predominance is satisfied where a plaintiff has demonstrated that individual issues are susceptible to common proof. See id. at 327-28 (discussing Kavu v. Omnipak Corp., 246 F.R.D. 642, 645 (W.D. Wash. 2007)). Similarly, under Rule 23(b)(2), a Court must determine whether a class is sufficiently cohesive so that examination of the particular circumstances of each member of the class is unnecessary. McLaughlin, supra. Here, one of the substantive issues that will control the outcome is whether the putative classmembers consented to Ally’s contacting them via their cellular telephones. See 47 U.S.C. § 227(b)(1)(A). A finding of consent precludes liability under the TCPA. Although Conrad alleges that Ally pursued a common course of conduct in making the calls, individual issues of consent would predominate at a trial on the merits if the Court were to certify the class. And, although Conrad argues that the consent issue is subject to generalized proof by examining certain fields in Ally’s database, his argument presumes that consent is denoted at all in Ally’s database and that if it is, such information is correct. See App. to Mot., Decl. Robert Biggerstaff Pursuant to 28 U.S.C. § 1746, at ¶¶ 13-18 (“Another query that I could easily perform, would be to select a few hundred customer records where the data indicates that consent to call a cell phone was withdrawn, and then check those customer records for consistency with the stated procedures . . . .”). Instead, as Ally argues, putative classmembers could have given their consent in a variety of different ways (and could have withdrawn and re-granted consent during the course of their business with Ally). See Opp’n of Ally Fin. Inc. to Pl.’s Mot. Class Cert.  (stating that putative classmembers could have given consent by providing the cell phone number at the time of application, via a phone conversation with a customer service agent, via an email, via interface with the website, or during an in person field call by a skip trace agent). And, as in the case of Conrad, putative classmembers may argue that they never gave consent despite Ally’s records to the contrary. See Ally App., Oral Dep. Herman Scott Conrad 56:12 – 57:7. Thus, the consent issue would necessitate individual inquiries regarding each putative classmember’s account and the circumstances surrounding each call or contact. Additionally, because this individual issue has the potential to separate classmembers from each other, the class lacks the cohesiveness necessary for the Court to certify a class under Rule 23(b)(2). Accordingly, the class also fails on predominance and cohesiveness grounds.