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 Originally enacted in 1991 with the purpose of deterring telemarketing, the Federal Communications Commission (FCC) and the courts have expanded the reach of the law over time to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