In Wilkes v. Caresource Mgmt. Group Co., 2016 WL 7179298 (N.D. Ind. 2016), Judge Degulio allowed a TCPA class action to proceed beyond the pleadings stage.
CareSource argues that the Plaintiffs cannot satisfy the predominance requirement because each potential class member’s claim would require individual inquiries into whether that class member provided consent and, if so, whether they revoked that consent prior to the call. CareSource correctly notes that it is not uncommon for individual questions as to consent and revocation to defeat a putative class action due to the predominance requirement. E.g., Wolfkiel v. Intersections Ins. Servs. Inc., 303 F.R.D. 287, 293–94 (N.D. Ill. 2014); Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 106 (N.D. Ill. 2013) (collecting cases). It is also not uncommon, though, for TCPA cases to be certified as class actions, even when issues of consent and revocation are present. E.g., Kolinek v. Walgreen Co., 311 F.R.D. 483, 492–93 (N.D. Ill. 2015) (certifying a TCPA class action where “common questions at the heart of this class’s suit…include whether, as a matter of law, providing a cellular telephone number for verification purposes constitutes prior express consent to receive prescription refill reminder calls”); Balbarin v. N. Star, No. 10 C 1846, 2011 WL 211013 (N.D. Ill. Jan. 21, 2011). The court in Jamison attributed these different outcomes to the following distinction: “[I]ssues of individualized consent predominate when a defendant sets forth specific evidence showing that a significant percentage of the putative class consented to receiving calls on their cellphone. However, if the defendants fail to set forth this specific evidence and instead only make vague assertions about consent, then individualized issues regarding consent will not predominate over common questions of law or fact so as to prevent class certification.” Jamison, 290 F.R.D. at 106–07. The role that evidence set forth by a defendant plays in resolving the predominance inquiry presents an obstacle to CareSource’s request to resolve this issue based on the Plaintiff’s complaint, and ultimately dooms its request to strike the class allegations at this stage. If, as CareSource asserts, it gathered consent for the calls in question through individualized circumstances, then the Plaintiffs may well fail to meet the predominance requirement, in which case class certification would be denied. The same could be true for revocation of any consent. However, the allegations in the complaint do not compel such a finding at this stage. Rather, they permit a plausible inference that any consent or revocation arose through systematic processes that would be uniform across the class. As to revocation, the Plaintiffs allege that any consent they may have given was revoked when they terminated their health insurance coverage, which they did through a standardized form that was generated through and sent to CareSource by the Health Insurance Marketplace. Whether such an action operates to revoke consent under the TCPA could be determined based on the same evidence for each class member that likewise terminated their coverage with CareSource—the common question is whether terminating coverage from a provider operates to revoke consent to be called by that provider, and the resolution of that question will not (so far as it appears at the pleading stage) depend on evidence unique to each class member. See Wolfkiel, 303 F.R.D. at 294 (denying a motion to strike class allegations where the same evidence would be used for each member of the class to determine consent). As to consent (which is an affirmative defense), the Plaintiffs’ complaint does not admit that they ever gave consent or provided their phone number directly to CareSource in the first place. As Plaintiffs argue in their response brief, CareSource may have obtained their phone number through standardized forms, perhaps generated through the Marketplace, which they used to enroll in CareSource’s plan. In that case, common questions could still predominate even if CareSource raises a consent defense, as the question would then be whether those standard forms, which could be common across the class, give rise to consent to receive the calls in question. For example, in Kolinek, the parties disputed whether the plaintiff gave consent to receive the calls in question and whether the calls the plaintiff received were within the scope of that consent. 311 F.R.D. at 488. Nonetheless, the court certified a class action, finding that the predominance requirement was met where the defendant collected the phone numbers in a common manner. Id. at 489, 492–93; see also Wolfkiel, 303 F.R.D. at 294 (declining to strike class allegations due to a consent defense where the source of the alleged consent could be common for each class member); Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 686 (S.D. Fla. 2013) (“Whether the provision of a phone number on admissions paperwork equates to express consent is a question common to all class members, because all class members filled out paperwork at the time of treatment. On this defense, all class members will prevail or lose together, making this another common issue to the class.”). Therefore, the Court cannot conclude that the Plaintiffs’ class allegations are facially and inherently deficient such that the complaint itself makes clear that class certification will be inappropriate. CareSource may be correct that the Plaintiffs face an uphill battle to achieving class certification, and the facts might ultimately develop in such a way that class certification would be improper. But at the pleading stage, the Plaintiffs have alleged facts sufficient to plausibly suggest that they will be able to meet the requirements for class certification, so they are entitled to commence discovery to support their claims. CareSource’s motion to strike the class allegations is thus denied.