The November 3 decision in Alpha Tech Pet, Inc. v. Lagasse, LLC, et al. highlights that one of the key individualized issues present in many TCPA class actions – whether consumers provided their consent to be called, texted, or, as in this case, sent faxes – can defeat class claims.

In its complaint, Alpha Tech Pet alleged that the defendants sent it eight unsolicited fax advertisements in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.  Alpha Tech Pet sought to certify a class of all persons to whom the defendants sent faxes from May 1, 2011 to May 1, 2015.  Importantly, the class included members who had received both solicited and unsolicited faxes.

In March 2017, the United States District Court for the District of Columbia, in Bais Yaakov of Spring Valley v. FCC, held that the TCPA only applies to unsolicited fax advertisements and not to solicited faxes.  Since that decision, “several courts have found class certification inappropriate in TCPA cases where, ‘to determine whether any putative member of the proposed class had a TCPA claim, the Court would first be required to determine whether that proposed class member ‘solicited’ the faxes it received.’”  However, the defendant must first “set forth ‘specific evidence showing that a significant percentage of the putative class consented to the communication at issue’ before a court can find that ‘issues of individualized consent predominate [over] any common questions of law or fact.’”

In Alpha Tech Pet, the United States District Court for the Northern District of Illinois followed these courts’ reasoning, finding “the individualized consent issues created by Bais Yaakov dispositive of plaintiffs’ class certification claims.”  The Court found that the defendants “set forth several different types of consent-related evidence,” namely consent forms provided by the defendants’ customers, a description of the defendants’ practices of requesting fax numbers from customers, and declarations from 25 customer fax recipients who consented to receive the faxes.  The Court held that this was “concrete evidence of consent” by a significant portion of the proposed class.  Accordingly, “individualized consent issues would require a series of mini-trials, thus defeating predominance and superiority.”  The Court therefore grated the defendants’ motion to deny class certification.

While Alpha Tech Pet focuses specifically on consent related to the receipt of faxes, consent will also pose an individualized issue in TCPA class actions involving telephone calls or text messages.  For non-telemarketing calls, the caller must have the prior express consent of the called party while telemarketing calls require prior express written consent of the called party.