A recent ruling in Sowders v. Scratch Financial, Inc., No. 23-0056, 2023 WL 7525900 (S.D. Ohio Nov. 14, 2023), emphasizes the need to challenge overbroad and unascertainable class definitions in TCPA suits. In that case, the defendant’s motions to dismiss resulted in a ruling that effectively narrowed the plaintiff’s proposed class definition.
In Sowders, the plaintiff had to amend their proposed class definition after the Southern District of Ohio found that the proposed definition of “parties who received an unsolicited fax ‘not including the opt-out notice required by 47 U.S.C. § 227(b)(2)(D)’” was an impermissible fail-safe class. Id. at *9-10. Regular readers of this blog will recall that a fail-safe class is one that includes only members who are “entitled to relief,” which is “impossible to ascertain . . . until judgment is rendered.” Id. The court found that, because the question of whether the defendant included “a statutorily compliant opt-out notice on its promotional faxes is deeply enmeshed in the merits of [plaintiff’s] class allegations,” the case could not proceed until the plaintiff amended the proposed class definition. Id. at *10. As a result, the court gave the plaintiff the chance to redefine the class consistent with the court’s analysis.
Sowders stresses the importance of precise and ascertainable class definitions and is a helpful reminder that TCPA defendants should scrutinize proposed class definitions to narrow the number of proposed class members.
