Aley v. Lightfire Partners: A Single Lead Website Consent Theory Supports Certifying a 62,000-Member Do Not Call Class

Background

The defendant, a Missouri telemarketer, placed calls in an "Auto Protectors" campaign. The plaintiff alleged her number had been on the National Do Not Call Registry since 2008 and that she received calls in early 2022. The parties agreed the defendant bought the numbers from a lead seller that collected them through a job search website, where users entered a phone number, checked an unchecked box, and clicked "continue." The defendant treated that as prior express written consent. The plaintiff swore she never visited the site. Her expert matched the defendant's calling records against the registry and identified 62,224 other class members.

Rule 23(a)

Numerosity and commonality. Over 62,000 members easily satisfied numerosity. Common questions included registry status, multiple calls, the shared campaign, and whether the website's procedures were legally sufficient to establish consent.

Typicality. The plaintiff's denial that she visited the website did not defeat typicality: others will likely make the same claim, the issue goes to the consent defense rather than the elements of the claim, and typicality is a low bar in the Second Circuit.

Adequacy. The defendant attacked the plaintiff's unfamiliarity with her pleadings and discovery responses, call recordings it said contradicted her complaint, and her website denial. None created a fundamental conflict. The court also rejected reliance on an "in-call opt-in," because the regulation bars initiating the call, and consent obtained after the call is answered does not explain why initiating it was lawful.

Ascertainability. The defendant's own call records, cross-referenced with the registry, made the class objectively identifiable.

Predominance: A "Relatively Close Call"

The defendant argued that individual questions about who visited the website would swamp the case. The court acknowledged the lead seller disclaimed any ability to verify that users entered their own numbers, so many class members may dispute visiting.

Those questions did not predominate. The defendant advanced a single consent theory applicable to every member, whose sufficiency can be resolved with common proof about the form's design and language. If that consent fails as a matter of law, individual visit questions become moot. If it succeeds, members can still try to prove they never visited. The court distinguished cases involving multiple consent theories or defenses unique to the named plaintiff. Superiority was satisfied given small individual damages and the risk of inconsistent rulings on the same consent process.

Practical Implications

Telemarketers relying on purchased leads should recognize that a uniform consent defense can unify a class rather than fragment it. Consent capture should be designed to meet the prior express written consent and electronic signature requirements, and sellers should be able to verify that the person consenting owns the number.

Read the Northern District of New York class certification decision in Aley v. Lightfire Partners.