Class actions are designed to promote the efficiency of litigation by allowing the claims of a group of individuals with the same claims to be decided in the same proceeding.  They are commonly utilized by plaintiffs’ attorneys in Telephone Consumer Protection Act matters.

In the matter of Tomeo v. CitiGroup, Inc., No. 13-C-4046, 2018 U.S. Dist. LEXIS 166117 (N.D. Ill. Sept. 27, 2018), Citi successfully defeated revocation and incorrect number class certification on the basis that the issue of consumer consent to be called had to be assessed on an individualized basis.  Predominance of common questions over individualized issues is one of numerous factors necessary to have a class certified.

Here, the two would-be classes consisted of a “revocation class,” defined as all persons who requested not to be called but were called by Citi.  The “incorrect number class” was defined as all persons who informed Citi that it had dialed the wrong number but were called by Citi. The estimated size of the classes was astronomical.

A central issue was one of whether and how consent to call could be established. Citi’s experts determined that consent, revocation thereof and calls to wrong numbers could only be determined by an in-depth review of individual computer records, accountholder information, databases, representative note screens and imaging systems.

There was specific evidence establishing that a significant percentage of the putative class consented to receiving calls.  The court stated that “consent is inextricably intertwined with primary issue of liability to the point where it predominates over the other common issues in the case.  If Citi had consent to place a call, it did not violate the TCPA at all.”

The Opinion is available, here.

Takeaway: Telemarketers that can affirmatively establish that some members of the class consented and that individualized issues of consent predominate may be able to avoid class certification.

Richard B. Newman  is an FTC attorney at Hinch Newman LLP. He represents internet marketers and advertisers, advises on national direct marketing campaigns, defends regulatory enforcement actions and investigations, and advises on privacy and data security matters.

Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

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