The Third Circuit recently affirmed a district court’s ruling in a Telephone Consumer Protection Act (“TCPA”) case that rejected class certification because individualized questions about consent precluded predominance.  Conner v. Fox Rehabilitation Servs., P.C., 2025 WL 289230 (3d Cir. Jan. 24, 2025).

In Conner, a plaintiff brought a putative TCPA class action alleging that the defendant violated 47 U.S.C. § 227(b)(1)(C) by sending unsolicited advertisements by fax.  The district court denied the plaintiff’s motion for class certification on ascertainability and predominance grounds, but it entered judgment against the defendant on the plaintiff’s individual TCPA claims.  The plaintiff appealed the denial of class certification, and the defendant cross-appealed, arguing that its faxes were not advertisements and that Section 227(b)(1)(C) of the TCPA violates the First Amendment.

After first determining that the district court did not err when it found that the defendant’s faxes were advertisements rather than merely informational notices, and then rejecting (with Judge Matey dissenting) the defendant’s First Amendment challenges, the Third Circuit affirmed the district court’s denial of class certification.  The court first held that the proposed class was ascertainable, because class members could be identified by reviewing transmission logs to identify successfully transmitted faxes.  Id. at *12.  But the court nonetheless affirmed the denial of class certification on the grounds “that individualized questions about consent . . . precluded predominance.”  Id. at *14.  In particular, the district court did not abuse its discretion when it found that the plaintiff’s “putative class would require thousands of mini trials on the individualized issue of whether the faxes had been unsolicited.”  Id.  These individual fact issues included whether the defendant sought permission to send its faxes, what defendant informed each class member about the faxes, how each class member consented, whether the specific faxes each class member received fit within the contours of the class member’s consent, and whether a class member otherwise invited the faxes in some other way.  See id.  The court deferred to the district court’s finding that the highly individualized method by which the defendant received consent from class members “render[ed] it impossible to resolve” the consent issue on a classwide basis.  Id.

The Conner ruling is an instructive reminder—both in TCPA cases and in other putative class actions where liability may hinge on whether putative class members consented to the defendant’s alleged conduct—that plaintiffs in such cases may struggle to establish that common issues predominate.

Photo of Stephen Rees Stephen Rees

Stephen Rees is a litigation associate in the firm’s Washington, DC office. He has handled matters involving a range of issues, including class actions, antitrust, product liability, ERISA, insurance, breach of contract, and tort claims.

Stephen has experience in all stages of litigation…

Stephen Rees is a litigation associate in the firm’s Washington, DC office. He has handled matters involving a range of issues, including class actions, antitrust, product liability, ERISA, insurance, breach of contract, and tort claims.

Stephen has experience in all stages of litigation, including:

  • dispositive motions;
  • fact and expert discovery;
  • class certification;
  • summary judgment;
  • mediation;
  • arbitration; and
  • trial preparation

Stephen has first-chaired fact witness depositions, drafted dispositive motions in both federal and state court, and argued hearings in federal court. In addition, he maintains an active pro bono practice, with an emphasis on immigration-related impact litigation and criminal law matters.