On August 15, 2017, the Northern District of Illinois denied class certification to a proposed Telephone Consumer Protection Act (TCPA) class in Legg v. PTZ Insurance Agency Ltd., No. 14 C 10043. The court held that, because some of the named plaintiffs consented to receive communications from the defendants, they could not show concrete injury under Spokeo. The court denied class certification because the question about whether class members consented to receive communications was too individualized to decide at the class level. Legg has strategic implications about how Spokeo can be used to defeat certification in other TCPA putative class actions.
In Legg, consumers consented to receive offers for products and services in connection with pet adoptions from defendant PTZ Insurance Agency, Ltd’s (PTZ) partner animal shelters. One of those products was pet insurance, offered by PTZ. To market its pet insurance, PTZ sent customers emails, followed by two recorded calls, encouraging customers to sign up for an introductory 30-day period of free pet insurance. The plaintiffs alleged that the calls violated the TCPA because the statute requires that businesses obtain explicit prior written consent before making automated calls to consumers. The plaintiffs alleged that no class member provided the required written consent.
The court disagreed, finding that some class members provided at least some kind of consent to be contacted by PTZ. Although the class members’ consent technically fell short of the TCPA’s express written consent requirement, the fact that the class members consented in some way meant that they expected to be contacted by PTZ in some capacity. The court reasoned that, where such consent was present, class members could not rely on a mere technical violation of the TCPA to show injury—i.e., the class members who consented to be contacted needed to show that they were actually harmed in some way, separate and apart from the fact that they received a call from PTZ. The court found that it would need to determine whether each class member consented to be contacted at the time he or she adopted a pet, an inquiry which the court found was too individualized to certify the class.
In reaching its decision, the court also addressed other decisions finding that technical violations of the TCPA were sufficient to satisfy the Spokeo concrete injury requirement. The court distinguished those cases, noting that they involved situations where consumers provided no consent whatsoever to be contacted. In those cases, the unsolicited telephone contact in and of itself constituted injury, because it was a per se invasion of the consumer’s protected privacy rights. By contrast, the court concluded, no such per se invasion of consumers’ privacy rights occurred in Legg, where some class members consented in some way to be contacted by PTZ.
Legg shows that, as long as defendants can show that plaintiffs consented in some way to be contacted, then plaintiffs may need to demonstrate concrete injury under Spokeo, and defendants can attack class certification on predominance grounds on that basis. Although it remains to be seen whether other courts will adopt the Legg court’s reasoning (or whether the decision will be validated on appeal), the decision demonstrates yet another way that the Spokeo decision has changed the legal landscape.