NOT AUTOMATIC: Reconsent Dooms Certification Effort in Internal DNC SMS TCPA Class Action

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Imagine you’re a TCPA defendant sued in a TCPA class action because you kept sending marketing messages to consumers who asked for the messages to stop.

That’s a pretty bad spot to be in. Especially when the named Plaintiff received several messages after he specifically asked for messages to stop.

Well in a very thoughtful opinion the Court in Mitchell v. Toyota of Dallas, 2025 WL 3013789 (N.D. Tex. Oct. 28, 2025) bailed the defendant out of this dire situation–finding that many of the class members might have reconsented to receive the messages at issue.

In Mitchell the named plaintiff asked for texts to stop and even received confirmation they would. But they did not.

The Plaintiff obtained data showing 16,546 similar text messages were sent to 1,539 customers who also opted out of further messages from TOD.

This is a bad situation– the dealership was facing over $8mm in damages to a class that looked pretty cohesive.

But there was a problem.

Plaintiff’s expert Anya Verkhovskaya did not take into account that many customers reconsented after requesting texts to stop.  Some class members made inbound calls and others made visits to the dealership, while others gave consent on third-party platforms such as Kelly Blue Book, Cars.com, or Truecars.com.

In the end the court determined the class was not “cohesive” because so many class members did not have valid claims owing to their reconsent.

Really important case for defense lawyers to keep in mind. The expert for the defense in this one was my good friend Peggy Daley. She put together a sample protocol demonstrating the reconsent issue– and it delivered the win for the dealership.

Nice job Peggy and congrats to the defense!

If you want to see great results like these be sure to hire EXPERIENCED TCPA counsel. These cases are complex and DANGEROUS. The lawyers at Troutman Amin, LLP have been called “The Best TCPA Firm in the Nation”– so reach out before our prices go up Jan 1, 2026!

THE FIRST $6K AN HOUR ATTORNEY?: Troutman Amin, LLP Rates Set to Rise January 1, 2026– Get In Now!

Chat soon.

 

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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