A California federal judge has certified a nationwide class of consumers to pursue claims that a lead-generation company and a cruise company violated the Telephone Consumer Protection Act (“TCPA”) by using a prerecorded voice and/or automatic dialing system to call class members without their consent.

The plaintiffs allege that Royal Seas Cruises, Inc. (“Royal”) engaged Prospects DM (“Prospects”) to obtain and call telephone numbers to inquire whether the called party was interested in Royal’s products and, if so, to transfer the called party to a Royal representative. Plaintiffs allege that Prospects obtained the telephone numbers through third-party websites operated by digital marketing companies. Specifically, Prospects provides the name of a given customer, like Royal, to the digital marketing companies, which in turn incorporate the customer’s name into their websites. The websites generate leads by using a form through which a user can register their contact information for promotional and product information related to companies identified in the form. The form expressly indicates that checking the box including in the form constitutes consent to receive communications from one of several identified companies and organizations, whether by text or call using an automated dialer or an artificial or prerecorded voice. The form does not submit if the box is left unchecked. A lead is generated when the user completing the form checks the box and clicks the submit button. The lead information is sent to Prospects who then contacts the prospective customer to gauge their interest in Royal’s products.

Class certification primarily turned on whether individualized issues of consent among the named plaintiffs or putative class prevented common issues of law or fact from predominating. Royal and Prospects argued that issues of whether the named plaintiffs consented through the website forms predominated over common issues. The court disagreed.

The court explained that, for individualized issues of consent to predominate, the party opposing class certification must first present evidence of that consent. Royal and Prospects offered declarations from representative of each company discussing in the abstract how they believe the lead generation program should work for “consumers,” “the consumer,” “the opted-in telephone number,” “a person” or “individual users” using a website. The declarants, however, lacked personal knowledge of whether the named plaintiffs or any putative class member actually visited and completed the forms available at the websites Royal contended are the lead generation sources for the telephone numbers of the class members. Thus, the court concluded these declarations could not constitute evidence that named plaintiffs or class members provided consent before they were contacted.

Without actual evidence of prior express consent from either defendant, the court explained that class members could provide individual affidavits averring lack of consent, and the defendants would be unable to rebut with anything other than the unfounded testimony of individuals who lack personal knowledge of who visited the websites generating the leads. Indeed, the named plaintiffs submitted declarations supporting their assertions that neither defendant obtained their prior express consent, stating that they did not fill out the contact form on the third-party websites and their consent, as well as that of putative class members, had been “manufactured.” The named plaintiffs argued that their “manufactured” leads theory could be tested by comparing the number of leads generated for a particular website with the website traffic data from the servers associated with the website.

The court certified a nationwide class and subclass. The nationwide class consists of those who Prospects, on behalf of Royal, called using an automatic dialing system and/or prerecorded voice and whose telephone number is associated in Prospect’s records with either of the third-party websites associated with the named plaintiffs’ numbers. The subclass consists of those members of the class who had their call transferred to a Royal representative. The decision applies a difficult burden for defendants to meet to produce actual evidence of consent by named plaintiffs or putative class members to defeat class certification, particularly where that consent may be through a third party.

The decision is McCurley v. Royal Seas Cruises, Inc., No. 3:17-cv-00986 (S.D. Cal.), Dkt. No. 87.