Federal courts have a continuing obligation to ensure that class action certification remains appropriate throughout the duration of a case. Accordingly, it is well established that if class certification is later deemed improvident, the district court may decertify a previously certified class.

That is precisely what the Northern District of Illinois did in Johnson v. YAHOO! Inc., No. 14 CV 2028, 2018 WL 835339 (N.D. Ill. Feb. 13, 2018), in addressing a previously certified Telephone Consumer Protection Act (TCPA) class action.

The certified class stemmed from the representative plaintiff’s receipt of text messages from a Yahoo messaging app. The plaintiff contended that she had not given prior permission for these unauthorized texts. On those grounds, she contended that by sending the texts, Yahoo had violated the TCPA provision that makes it unlawful “to make any call (other than a call made … with the prior express consent of the called party) using any automatic telephone dialing system … to any cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).

Yahoo had previously opposed class certification on the grounds that common questions of law or fact would not predominate because of the individualized inquiries necessary on its affirmative defense of consent to Yahoo’s terms and conditions. Those terms and conditions allow such texts to be sent. Earlier in the case, the district court rejected that position because Yahoo did not offer sufficiently concrete evidence to support its position.

However, toward the end of discovery, for purposes of providing class notice, the plaintiff sought records from mobile phone carrier Sprint regarding the identities of its subscribers and authorized phone users. That discovery proved to be the class’s undoing.

Based on the evidence received from Sprint, Yahoo was able to match the identities of phone subscribers and authorized users to the identities of Yahoo members who had accepted Yahoo’s terms and conditions and, thereby, consented to receiving the supposedly unlawful texts. The district court observed that Yahoo’s new proof, supplied in large part by Sprint, was sufficient to justify an individual consent inquiry for a significant percentage of the class “perhaps between 20 to 25%, maybe more.”

The district court also explained that the “predominance of individual issues necessary to decide an affirmative defense may preclude class certification.” Because of the individualized inquiries required on the consent defense, the district court decertified the class: “defendant does not need to prove consent to decertify the class. It just needs to show that proving consent requires individualized analysis such that the class does not meet the predominance requirement. It has done that much…. Decertification, not redefinition, is the appropriate step in light of defendant’s showing that individualized consent inquiries will predominate.”

Johnson v. YAHOO! Inc., No. 14 CV 2028, 2018 WL 835339 (N.D. Ill. Feb. 13, 2018).