United States: No Harm, No Foul? Individualized Consent Issues Sink TCPA Class Action

Is a class action lawsuit appropriate when some class members have consented to the defendant's conduct, but have not given that consent in the manner the law requires? According to at least one federal judge, the answer to that question is "no."

The Telephone Consumer Protection Act (TCPA) has become notorious among businesses that rely on ongoing telephonic contact with their large customer bases. Originally enacted in 1991 with the purpose of deterring telemarketing, the Federal Communications Commission (FCC) and the courts have expanded the reach of the law over time to prohibit automated dialing or messaging for almost any purpose, particularly to mobile phones. With the significant restrictions it imposes, and the statutory penalties it prescribes for each violation, ranging from $500 to $1,500 per violation, class actions under the TCPA have steadily increased in stakes over the past several years. A TCPA suit is the nightmare of many a CEO, given the "bet-the-company" liability that could potentially be involved in such a litigation.

As the TCPA has continued to gain popularity over the past several years – even as more and more people use their mobile phones exclusively – many have wondered whether the FCC, the courts or even Congress would take action to limit or better define the scope of the TCPA. Companies have had some success in defeating class certification on the basis that the question of consumer consent to be called or texted can only be determined on an individualized basis. A recent decision from a federal court in Illinois takes this defense a step further.


Under the Federal Rules of Civil Procedure, parties seeking class-wide damages must demonstrate two key elements, among others:

  • the existence of questions of law or fact common to all class members; and
  • the predominance of those common questions over individualized issues, such that a class action is a superior method to fairly and efficiently adjudicate the matter at issue.

Under the TCPA, a consumer's consent to be called can constitute a complete defense to liability, and TCPA defendants have long argued that determining whether each individual consumer consented to be called or not makes class-wide resolution of TCPA claims infeasible. Defendants making this argument have met mixed results, with some courts accepting this defense to class certification, while others finding that circumstances made this issue capable of class-wide proof.

In the case of calls or texts transmitted for telemarketing or advertising purposes, the most recent TCPA regulations promulgated by the FCC require the consumer's prior express written consent before an automatically dialed call or text may be sent to that consumer. TCPA plaintiffs have argued that where the calls they complained of are telemarketing or advertising-related calls, the advertiser's failure to adhere to the TCPA's requirement of formal written consent fundamentally enables class-wide proof. This was the issue presented to the U.S. District Court for the Northern District of Illinois.

Form over Substance: Lack of Consent in Writing May Not Amount to Concrete Harm

In Legg v. PTZ Insurance Agency (Legg), the plaintiffs alleged that they received advertising robocalls from a company that offered pet health insurance, reminding them to collect on 30 free days of health insurance that they had received for adopting a pet from an animal shelter. The evidence in the case demonstrated that although the putative class members had voluntarily given their phone numbers to the shelters during the adoption process after being advised that their information would be shared with third parties, and some had even verbally consented to receive calls, none of them had provided written consent in the form the TCPA and FCC regulations required. The plaintiffs argued that given the undisputed lack of prior express written consent, the consent issue could be determined on a class-wide basis.

The defendant – and the court – disagreed. Citing Spokeo v. Robins, a landmark 2016 decision by the U.S. Supreme Court holding that a plaintiff must demonstrate a concrete, particularized injury in order to bring a lawsuit in federal court, the Illinois federal judge held that any proposed class member who had orally consented to receive calls had suffered no injury under the TCPA, which was designed to prevent only unsolicited calls. The defendant's failure to adhere to the TCPA's technical requirements as to the form of consent was not enough to create actionable harm. Therefore, individual mini trials would have been required to determine which individuals had standing to be class members and which ones did not. Holding that this issue would predominate over others in the case, the court denied class certification.


The decision in Legg may represent a growing willingness by courts to take a more pragmatic approach to class action claims brought under the TCPA, looking beyond the technical requirements under the TCPA and focusing more on the goal it was designed to accomplish, examining whether the manner in which the TCPA is being invoked is truly serving its purpose.

Bottom Line

The Northern District of Illinois' practical approach to analyzing whether lack of consent gives rise to actionable harm under the TCPA, and whether this issue can truly be determined on a class-wide basis, may represent a significant victory for businesses that rely heavily on telephone and text interactions with their customers. Companies should nonetheless be sure they are following best practices in both their dialing procedures and their agreements with call centers and other dialing vendors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Akin Gump Strauss Hauer & Feld LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Akin Gump Strauss Hauer & Feld LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions