A TCPA defendant in Arizona federal court recently uncovered what appears to be a previously undiscovered silver-lining to a default judgment: a denial of class certification.
In Heidarpour v. Secured Mktg. Concepts Corp., 2025 WL 764287, at *1 (D. Ariz. Mar. 11, 2025), the plaintiff brought a putative TCPA class action for alleged telemarketing calls that were placed without the prior express written consent of call recipients. When the defendant failed to appear, the plaintiff moved simultaneously for default judgment and class certification. The court denied class certification, explaining that “even if permissible, certifying a class when a defendant is in default may not be prudent.” Id. at *2.
The court explained that conducting a “rigorous analysis” to ensure all of Rule 23’s requirements are met is impossible when only accepting as true plaintiff’s allegations (as required upon default judgment). “[A] plaintiff’s mere allegations in a complaint are [not] sufficient to establish Rule 23’s class certification requirements[.]” Id. (quoting Sapan v. Veritas Funding, LLC, 2023 WL 6370223, at *2 (C.D. Cal. July 28, 2023)). “[T]he general principle that factual allegations in the complaint are deemed admitted by the defendant upon default does not apply [to class certification] because Rule 23 imposes an independent duty on the district court to determine by order that the requirements of Rule 23(a) are met regardless of the defendant’s admissions[.]” Id. (quoting Pagano v. HN & Sons LLC, 2024 WL 4625296, at *1 (E.D.N.Y. Oct. 30, 2024)).
The court found it particularly inappropriate to certify-by-default a Rule 23(b)(3) class because of the Rule’s requirement to “direct to class members the best notice that is practicable under the circumstances[,]” which a plaintiff cannot possibly have sufficient information to do in a default judgment posture. Id. at *2. The court further explained that notice must precede entry of judgment to protect class members’ due process rights and to allow them to intelligently decide whether to participate in the litigation. Ultimately, the Heidarpour plaintiff was left with two options — file a renewed motion for default judgment on an individual basis or file a notice of voluntary dismissal.
While it seems unlikely that the defendant in Heidarpour strategically permitted the default judgment in order to cabin liability to the plaintiff’s individual claim, the result here may inspire such shenanigans. In the event it was deliberate, the ubiquitous warning — “do not attempt at home” — should be appended to copies of the opinion.
