Consent Kills: Trends In Defeating TCPA Class Actions

The Telephone Consumer Protection Act numbers among the most commonly litigated consumer protection statutes. Originally enacted over 25 years ago to protect against unwanted calls and facsimiles, the TCPA has seen multiple waves of litigation from settling the original statutory landscape to the advent of affordable, ubiquitous cellular telephones to the creation of web-based mobile marketing.

Given that the TCPA broadly seeks to regulate the use of automated telephone dialing systems, capable of making large numbers of calls in small periods of time, plaintiffs have often sought to use the class action vehicle as a means to pursue alleged TCPA violations. Just as plaintiffs have brought multiple theories and arguments to bring forth TCPA class actions, defendants have followed in stride creating new means to attack and defend such class actions. One such defense receiving much attention and traction argues that individualized questions of consent make class treatment of the claim inappropriate.