Court Denies Class Certification Over Questions of Consent

TCPA Connect

An Illinois federal court judge denied class certification in a Telephone Consumer Protection Act (TCPA) lawsuit against Citigroup after the defendant successfully argued that individual issues would predominate.

Eduardo Tomeo alleged that Citi used an automated telephone dialing system to contact accountholders in violation of the TCPA and sought to certify two classes: a “cease and desist” class of plaintiffs who continued to receive calls or texts after they requested not to be called and a second “wrong number” class of those who continued to receive calls after telling Citi it had called the wrong number.

The defendant objected, arguing that U.S. District Judge Sara L. Ellis should not certify either class because individual issues concerning consent predominated. The court agreed, denying the motion for class certification.

Citi uses call centers to contact parties with whom it has a pre-existing relationship (i.e., different types of accountholders) to place calls and send text messages. Three different types of computerized records contain information relevant to whether Citi has the necessary consent to contact a given phone number.

For example, the CitiLink loan servicing system has basic accountholder information and “Note Screens” where Citi representatives record the details of their interactions with the accountholder. In addition, the defendant uses a default-related loan servicing system with similar data but only for accounts in default, as well as FileNet, a system used by Citi to store digital versions of correspondence and other paper documents relevant to the account.

If an accountholder asks Citi to stop contacting a specific number, company policy instructs the representative to add a “Do Not Call” flag to that phone number. A “Cease and Desist” flag should be added when an accountholder requests that Citi stop all communication. If Citi contacts the incorrect number, a flag is placed stating “WRNG.”

With this background in mind, Judge Ellis considered whether the plaintiffs satisfied the requirements of Federal Rule of Civil Procedure 23(a) in order to certify the class, answering in the negative. “The Court finds that the issue of consent is decisive here: because individual questions of consent predominate, Tomeo has not carried his burden of establishing that common issues predominate,” the court ruled.

Citi put forth specific evidence establishing that a significant percentage of the putative class consented to receive calls, the court said. The defendant’s expert reviewed a sample of over 1,000 individual Note Screens and concluded that because the flags were not always accurate and accountholders frequently went “back and forth” between giving consent and revoking it, “the only way to determine consent for each accountholder is to individually review Citi’s files on each accountholder,” the court noted.

Specifically, in 17 percent of the Cease and Desist accounts reviewed, the accountholder reconsented to contact. Some of the accounts reviewed received a significant number of calls, the court said, meaning the total number of calls disqualified from the class definition after an individual analysis could be significant. A similar situation was found in the Wrong Number accounts, with 15 percent determined to actually be a phone number for the accountholder.

“This is not a situation where individuals filled out standard forms, checking whether or not they consent to contact—there is no one word that [the plaintiff’s expert] could search to determine the consent status for each potential class member at the time of each potential violation,” the court explained. “[T]he Court would still need to conduct individual inquiries into whether the interactions described in those notes constituted a change in the status of consent.”

The situation of Tomeo himself was instructive, Judge Ellis said. To determine whether Citi had consent to call Tomeo, the parties reviewed individual Note Screens, FileNet, Citi recordings of calls with Tomeo and three depositions—and remained in dispute as to whether consent existed.

“[A] fact finder would need to sort through this evidence to determine whether Citi had consent to place calls to Tomeo,” the court said. “Simply put, neither Tomeo nor his experts adequately identify a common way to address the individual variations of consent and revocation that occurred in this case.”

Concluding that “consent is inextricably intertwined with the primary issue of liability to the point where it predominates over the other common issues in the case,” the court denied class certification. “In the face of Citi’s evidence that it had consent for a significant percentage of potential class members, Tomeo has failed to establish a way to determine consent on a classwide basis. Thus, individualized issues of consent predominate, and Tomeo has not carried his burden.”

To read the opinion and order in Tomeo v. Citigroup, Inc., click here.

Why it matters: A significant victory for the defendant (had the court certified the millions of plaintiffs in either of the two classes, Citi faced tens of millions of dollars in liability, if not more), the court’s order recognized that the provision and revocation of consent continued back and forth over time, requiring a highly individualized inquiry as to whether the company had consent at the time each of the calls was made. Likely instructive in this case was the fact that the parties were unable to resolve the consent inquiry even as to the named plaintiff after significant discovery. This case also highlights the importance of keeping detailed consent records, as Citi would have been unable to demonstrate its customers’ consent trends without them.