How do you prove consent in a TCPA case? According to one recent decision, when consent is asserted to defeat class certification, a defendant must “actually produce evidence which shows prior express consent by the named plaintiffs or at least some putative class members.” McCurley v. Royal Seas Cruises, Inc., Case No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 52173, at *69 (S.D. Cal. Mar. 27, 2019). In addition, the issue of consent must be likely to devolve into individualized inquires based on the nature of the evidence presented. The court found that the defendant’s submission of a declaration by its marketing director and a lead generator explaining how the lead generation consent process “should” work satisfied neither of these principles. The court then proceeded to certify a TCPA class under Rule 23(b)(3) (but not Rule 23(b)(2), which does not apply when damages are sought).
Prior to addressing the issue of class certification, however, the court rejected most of the defendant’s challenges to plaintiffs’ expert testimony and defendant’s standing argument. In addition, the court rejected defendant’s argument that the court could not exercise personal jurisdiction over nonresident absent class members following the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). Acknowledging the split among courts as to whether Bristol-Myers applies to class actions, the court determined it did not need “to wade into this jurisprudential dispute because [the defendant] had waived any personal jurisdiction challenges” by failing to raise them in response to plaintiffs’ initial complaints, each of which alleged a nationwide class. While the court recognized that other courts (including Bakov v. Consol. World Travel, Inc., 2019 U.S. Dist. LEXIS 46510 (N.D. Ill. Mar. 21, 2019) – a case we blogged about last week) had excused similar failures and struck the nationwide class allegations, the court departed from this line of cases.
As to class certification, the court rejected defendant’s efforts to defeat class certification based on consent. First, the court criticized the defendant for failing to present actual evidence of prior express consent. Specifically, the court noted that the defendant had “not provided a single affidavit from a proposed class member who expressly attests that he or she opted to receive calls for [defendant’s] services through the lead generation program.” Further, the information the defendant did provide – declarations describing the opt-in process – were not based on personal knowledge of whether plaintiffs or the class members actually visited and completed the forms. In short, the court held that it would “not credit bare assertions by a lead generator or [the defendant] regarding who completed an online ‘optin’ form in the absence of evidence from an actual class member who completed such a form and attests to providing consent before he or she received a call.” Finally, the court found that even assuming evidence of consent, the marketing program described in the declarations set forth a process for obtaining consent that should produce a common answer. Thus, the court found that common questions of fact and law would predominate over individual ones and certified a class.
So what should we here at TCPAWorld take away from this opinion? It appears that for whatever reason, the court was skeptical of the consent evidence presented by the defendant. So, if you are defending a case based on consent, make sure you put forward the best evidence you can marshal of actual consent (recognizing, of course, ethical obligations and constraints regarding communications with putative class members).