On August 15, the United States District Court for the Northern District of Illinois denied a motion for class certification in Legg v. PTZ Insurance Agency, Ltd., a putative class action under the Telephone Consumer Protection Act. The plaintiffs in the lawsuit, Christopher Legg and Page Lozano, sued PTZ and affiliated companies alleging violations of the TCPA, including placing unsolicited robocalls to Legg’s and Lozano’s cellular phones.

PTZ offers pet insurance and offered a 30-day free gift of pet insurance to adopters of pets with safety microchips from certain animal shelters. The adoption process involved filling out paperwork, which asked the adopting consumer to provide a telephone number. The paperwork included a statement that unless the consumer opted-out, they may be contacted by marketing partners. One such partner, PTZ, allegedly placed prerecorded robocalls on at least two occasions to Legg and Lozano, which the plaintiffs claimed violated the TCPA. Legg and Lozano sued on behalf of themselves and a putative nationwide class of persons who received similar calls from PTZ and, following discovery, moved to certify a class of 341,288 members.

The district court found the class satisfied the requirements of Rule 23(a), noting that each class member received the same call and that the claims arose from a single set of facts. The court also found Legg and Lozano, as well as their counsel, to be adequate representatives of the class. However, although the proposed class satisfied the class requirements of Rule 23(a), the court found it did not satisfy sub-part (3) of Rule 23(b).

The court focused its inquiry on Rule 23(b)(3)’s predominance requirement, noting it is “far more demanding” than mere Rule 23(a) commonality. With that in mind, the court held it could not certify the class because of questions of class member consent. Specifically, it found individualized questions of consent by each class member predominated over common questions of law and fact. The court noted many class members had agreed, during the adoption process, to receive communications by phone. From that recognition, the court expressed concern that if an adopter agreed and expected to receive calls, they would not have suffered a “concrete injury” sufficient to confer Article III standing, thus enmeshing the standing jurisdictional analysis with class certification. The court concluded it could only determine whether any class member consented through an individual analysis of evidence about each class member, an inquiry that would easily overwhelm the benefits of the class mechanism.

Ultimately, the court rejected the plaintiffs’ argument that consent could somehow be established based on generalized evidence, concluding that do so would instead present an insurmountable individual issue that defeated class certification.