Chicago-based litigators Sarah Zielinski and Jason Chrestionson bring us an update on the issue of individualized inquiry and Article III’s injury-in-fact requirement under the Supreme Court’s landmark decision in Spokeo, Inc. v. Robins.

Earlier this year, the Northern District of Illinois declined to certify a Telephone Consumer Protection Act (TCPA) class action even though the key issue in the case—whether class members had provided prior express written consent to receive prerecorded telemarketing calls—appeared to be a common question. In Legg. v. PTZ Insurance Agency, Ltd., it seemed apparent “that none of the proposed class members” provided prior express written consent in the form required by the TCPA and its accompanying regulations. Nevertheless, the Court held that Article III standing concerns rendered class members’ consent an individualized issue that predominated over any common class questions.

The defendants in Legg were pet adoption and pet insurance companies that provided pet adopters with a 30-day free gift of pet health insurance. During the adoption process, shelters gathered information from pet adopters for the purpose of providing this free gift. To receive the free gift, adopters had to opt in to email communications from the defendants. Adopters also provided their telephone numbers. Thereafter, the defendants made prerecorded calls to pet adopters to remind them of their free gift.

The plaintiffs sought to certify a class of individuals who received such calls without providing signed “prior express written consent,” which must be obtained prior to making prerecorded calls with a telemarketing or advertising purpose. The plaintiffs argued that determining whether class members had provided prior express written consent was a common question that could be answered on a class-wide basis.

Although the court seemed to agree, its analysis did not end there. Instead, the court reasoned that if class members had verbally agreed to receive calls from the defendants, they could not have suffered a concrete injury under Spokeo, Inc. v. Robins when they ultimately received such calls—even if the defendants failed to obtain such consent in the written, signed form required by the TCPA. Indeed, the defendants supplied affidavits from pet adopters declaring that they agreed and expected to receive calls from the defendants regarding pet insurance. Reasoning that the Congressional purpose of the TCPA was to prevent unsolicited calls, the court rejected the idea that a mere failure to abide by the TCPA’s procedural requirements gave rise to an Article III injury. Instead, it found that insofar as “the class members agreed to receive the calls, they lack[ed] a ‘genuine controversy,’” and denied class certification because determining whether each individual class member consented—and hence whether they were injured—would involve “hundreds, if not thousands, of mini-trials on the issue of consent alone.” Last month, the Seventh Circuit denied the plaintiffs’ petition to appeal this ruling.

In TCPA cases, the ability to certify a class frequently depends upon whether the issue of consent is a common question or whether it is individualized. Legg demonstrates that even where consent appears at first blush to be a common question, defendants in TCPA actions may be able to defeat class certification by relying upon Spokeo to establish that the question of consent is individualized.