In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice, who did not have a contractual relationship with TDAF.” The District Court found that such third parties might be able to have given consent.

The plaintiff asserts that “the TCPA does not permit a defendant to obtain prior express consent to autodial non-customers [for debt-collection purposes] at all.” (Docket # 36 at 2). So, the argument goes, the FCC has implicitly established a non-customer/customer dichotomy under the law. (Docket # 56 at 7) (arguing that “prior express consent must be obtained from ‘the consumer’—not ‘a consumer’ or ‘any consumer,’ but ‘the consumer’—whose account the debt collector is calling about”). Additionally, the plaintiff argues that the relevant transaction for purposes of prior express consent under the TCPA “is the origination of the loan or debt, and only the origination of the debt.” Id. at 21. Thus, “[s]ome later encounter relating to the original transaction, even if it involved a caller providing a cell phone number, does not constitute prior express consent to autodial the number received at the later stage.” Id. ¶ The defendant argues, conversely, that the plaintiff’s customer/non-customer dichotomy is “predicated on a misreading of the law,” because “neither the text of the TCPA, [nor] the FCC’s rulings, nor the case law make [such a] distinction.” (Docket # 47 at 22). Instead, the defendant argues that the FCC’s amicus letter brief in Nigro—citing language in a 2012 FCC Order relating to the TCPA—“reaffirmed that a noncustomer can verbally give consent to be autodialed.” (Docket # 47 at 23); see FCC Letter Brief as Amicus Curiae at 10, Nigro v. Mercantile Adjustment Bureau, No. 13–1362 (2d Cir. Oct. 16, 2014); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 27 F.C.C. Rcd. 1830, 1839–40 ¶ 25 (2012) (“2012 TCPA Order”). Finally, the defendant asserts that prior express consent involves issues of scope, revocation, and context which effectively distinguish Nigro from the instant case. ¶ . . . Thus, the Court must address the much larger question before it. To wit: Can a non-debtor provide prior express consent to receive autodialed debt-collection calls regarding another person’s debt? A question the plaintiff urges the Court to answer in the negative. The Court now turns to that question. . . . The Court need not answer any of these questions at this juncture. It is enough that they exist, even after the FCC’s amicus letter brief in Nigro. Taken together with the unsettled jurisprudence regarding consent under the TCPA,FN16 and the lack of Seventh Circuit guidance on this issue, then, the Court finds it wise to rely on the “old saw … that lawyers and judges ‘never say never.’ “ United States v. Flores, 985 F.2d 770, 783 n. 27 (5th Cir.1993). Thus, the Court declines to find that a non-debtor could never consent to debt-collection calls regarding another individual’s debt. To be clear, the Court is not ruling that TDAF can or will ultimately succeed on the merits of its arguments. That is a decision best left for determination after class certification. The Court’s discussion above is part and parcel of the “rigorous analysis” that is required of the Court under Rule 23 and Dukes. Indeed, peeking at the merits on this issue—the issue the plaintiff argues is determinable class-wide—is necessary because it is the “one substantive issue [that] will undoubtedly determine how a trial on the merits will be conducted if the proposed class is certified.” Gene & Gene LLC v. Biopay, 541 F .3d 318, 327 (5th Cir.2008).

The District Court found the class unascertainable:

The Court has serious reservations about the plaintiff’s method to ascertain the putative class members. Ascertainability in this case is about “identifying and providing notice to the class members as individuals, not merely numbers on a list.” Smith v. Microsoft Corp., 297 F.R.D. 464, 473 (S.D.Cal.2014). The plaintiff has proposed using a reverse-lookup provider to ascertain class members. But both parties’ experts agree that there is no reverse-lookup provider that can reliably provide subscriber information at a specified date in the past. Thus, this method presents a two-fold problem in light of: (1) the Seventh Circuit defining “called party”— i.e., who may bring a claim under the TCPA—as “the person subscribing to the called number at the time the call is made,” Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir.2012)(emphasis added); and (2) the plaintiff’s expert’s concession that reverse-lookup services can be inaccurate and the accuracy goes down in the debt-servicing population—because, presumably, those individuals often switch numbers to avoid debt-collectors, just as the named plaintiff did here.

The District Court also found that common questions did not predominate, since it previously had held that non-contracting parties “might” be able to have given consent.

Accordingly, the remaining question before the Court is whether the individual question of prior express consent will predominate over the issues common to the class. Whether the predominance requirement can be met is often outcome determinative in TCPA litigation. See Jamison, 290 F.R.D. at 106 (collecting cases and noting the “split of opinion in TCPA cases on whether issues of individualized consent predominate over common questions of law or fact so as to prevent class certification”). Thus, when prior express consent is at issue, predominance “primarily turns on whether a class-based trial on the merits could actually be administered,” Connelly, 294 F.R.D. at 577, or whether the case will devolve into myriad mini-trials on each class member’s claim. See Vigus v. S. Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 238 (S.D.Ill. Mar. 11, 2011) (finding individual consent issue would predominate “burden[ing] the Court and the litigants with the arduous task of sifting through each putative class member’s claim to determine its merits on a case-by-case basis”). ¶ Turning to the instant case, the Court finds it possible—indeed likely—that determining whether members of the class provided prior express consent would involve individualized inquiries. This is an inevitable consequence of the Court’s earlier discussion of prior express consent: namely, that the Court was not convinced that a consumer could never consent to autodialed calls regarding another individual’s debt. ¶ Whether consent could be given, was given, or was given only in a limited fashion will—as the FCC’s letter brief explained—“depend on the facts of each situation.” FCC Letter Brief at 4. Consequently, these individualized inquiries could involve a review of TDAF’s CASS system for evidence of consent, testimony by the class member regarding the scope and nature of his or her communications with TDAF—including whether purported consent was circumscribed by the circumstances of the call or by the class member expressly limiting the scope, and the production of other evidence related to each class members wireless number as could be necessary. See Connelly v. Hilton Grand Vacations, Co., LLC, 294 F.R.D. 574, 578 (S.D.Cal.2013) (noting that “the differing circumstances under which putative class members provided their cell phone numbers to [the defendant] are, at the very least, relevant to a determination of prior express consent”).