Category - "Class Certification"

District of Arizona Denies Certification of Claims Against Defendant That Had Defaulted

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.

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FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance

  • HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations.
  • HB 761 also stated that it should be applied retroactively to cases that were styled as class actions so long as a class had not been certified before HB 761’s effective date.
  • That retroactivity provision has caused a split between Florida’s federal courts and its state courts.
  • Two federal courts have applied HB 761 retroactively, dismissing class actions because a class had not been certified before HB 761’s effective date.
  • But two Florida state courts have refused to apply HB 761 retroactively, holding that applying a pre-suit notice requirement retroactively would violate due process.
  • Defendants will likely respond by invoking HB 761 retroactively only against unnamed class members (e.g., by striking class allegations) to avoid due process issues.
  • Relatedly, Florida state courts have sent mixed signals on TCPA/FTSA standing.
  • Until appellate courts provide clarity, defendants in Florida state court will likely have more success with standing arguments at the class certification stage.

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District of Oregon Finds that Ninth Circuit’s Chennette Presumption Does Not Materially Impact Class Certification Criteria

The United States District Court for the District of Oregon recently issued a significant opinion regarding the legal framework for certifying Do-Not-Call claims. See Mattson v. New Penn Financial LLC, 2023 WL 8452659 (D. Or. 2023).

The genesis of the case was the alleged receipt of unsolicited calls to a cellphone number listed on the National Do-Not-Call Registry. Central to the lawsuit was the plaintiff’s motion to certify a class of individuals who had allegedly received similar calls from the defendant. Id.

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Recent Rulings Highlight the Importance of Challenging Imprecise TCPA Class Definitions

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.

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Ninth Circuit Clarifies Standards for Certifying a Class and Determining Treble Damages Under TCPA

Last week, the Ninth Circuit in True Health Chiropractic, Inc. v. McKesson Corp. (True Health II), No. 22-15710 (9th Cir. Oct. 25, 2023), affirmed the Northern District of California’s earlier ruling in True Health Chiropractic Inc. v. McKesson Corp., 13-cv-02219 (N.D. Cal. Apr. 27, 2022), which clarified the standards for certifying classes under the TCPA and determining whether a violation of the TCPA is sufficiently “willful and knowing” to warrant treble damages.

In True Health, plaintiffs received 13 faxes from defendant advertising and offering rebates for medical billing software.  Plaintiffs attempted to certify a class and asked for treble damages, alleging that defendant “willfully and knowingly” violated the TCPA when it sent the faxes.  In response, defendant argued that plaintiffs had consented to receiving the faxes because they filled out optional registration forms giving their contact information and had authorized the transmission of “certain computer and software usage information” by signing an end user license agreement (“EULA”).  True Health, No. 22-15710 at 4.  Plaintiffs had filled out both documents when purchasing other products from defendant.

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Florida Appeals Court Finds Lack of Standing in State Court TCPA Case

Florida’s Third District Court of Appeal recently reversed class certification and directed dismissal, holding that the plaintiff had failed to establish any concrete harm from an alleged violation of the TCPA and thereby lacked standing. Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (3d Fla. Dist. Ct. App. May 10, 2023). (Note that this opinion has yet to be released for publication in the permanent law reports, as a motion for rehearing, clarification, or certification, or a petition for review, may be pending.)

Eldridge had visited the defendant’s store, where he learned about a promotion in which customers could win free dog food for a year if they enrolled in the defendant’s text-message program. After enrolling, Eldridge immediately received two texts, and then received an additional five texts over a period of six months. All the texts contained the message “Reply STOP to end” and concerned promotional or advertisement information.

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Established Business Relationship Defense Dooms Class Allegations

The Northern District of Illinois recently granted a TCPA defendant’s motion to strike class action allegations, reasoning that individual questions of consent and the availability of the established business relationship (“EBR”) defense made the claims unsuitable for class treatment.  The case is Sorsby v. TruGreen L.P., 2023 WL 130505 (N.D. Ill. Jan. 9, 2023).

The plaintiff alleged that, after cancelling her TruGreen lawn-care service and telling TruGreen not to call her, she received numerous calls from TruGreen to a number that was on the National Do-Not-Call Registry and should have been on TruGreen’s internal Do-Not-Call list.  TruGreen moved to strike the class allegations, arguing that plaintiff could not satisfy Rule 23’s requirements of typicality, commonality, and predominance.  The court agreed and struck the class allegations.

The court explained that the TCPA does not prohibit solicitations to customers with whom a business has an EBR.  Although the named plaintiff claimed to have terminated her own EBR, the availability of the EBR defense as to other class members was inherently individualized and not capable of being determined on a classwide basis.

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First Circuit Rejects Classwide Settlement, Finds That Would-Be Class Representatives Could Not Adequately Represent Subclasses With Materially Different Claims

The First Circuit recently reversed the District of Massachusetts’s approval of a settlement award that improperly lacked any subclasses within the 4.8-million-person putative class, finding it “too difficult to determine whether the settlement treated class members equitably.”  Murray v. Grocery Delivery E-Services USA, No. 21-1931, — F.4th — (1st Cir. Dec. 16, 2022).

The complaint alleged that defendant Grocery Delivery E-Services USA, d/b/a HelloFresh violated the TCPA through its marketing tactics by (1) calling former customers using an automated dialer, (2) calling former customers that were listed on the National Do-Not-Call registry, and (3) calling former customers that had asked HelloFresh not to contact them.  The named plaintiffs—through a single plaintiff’s attorney that purported to represent the entire 4.8-million-person class—negotiated a $14 million settlement with HelloFresh, which the District Court approved without identifying any subclasses of plaintiffs.

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Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley.  See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

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Eleventh Circuit Applies TransUnion and Vacates Class Certification

The Eleventh Circuit recently decertified a TCPA settlement class because the class definition included members who could never have Article III standing under Eleventh Circuit precedent.  Drazen v. Pinto, — F.4th –, No. 21-10199, 2022 WL 2963470, at *4-7 (11th Cir. July 27, 2022).  The court applied the U.S. Supreme Court’s holding in TransUnion LLC v. Ramirez and ruled that all members of a Rule 23(e) settlement class must have Article III standing to recover damages.  Id. at *5-6 (citing TransUnion, 141 S. Ct. 2190, 2208 (2021)).  The Drazen court expressly rejected the proposition that plaintiffs with no standing in the Eleventh Circuit could be part of a nationwide class, even if they may have standing in another circuit.  Id.  As of the date of publication, Drazen is the first and only decision from a federal appellate court that analyzes TCPA claims under the TransUnion rubric.  Although the impact of Drazen outside of the Eleventh Circuit remains unclear, the case demonstrates how courts may analyze Article III standing issues in TCPA class actions going forward.

As readers of this blog are aware, the U.S. Supreme Court issued its decision in TransUnion, LLC v. Ramirez last summer.  The decision reaffirmed that plaintiffs must demonstrate a “concrete harm” to establish Article III standing to sue in federal court.  TransUnion, 141 S. Ct. at 2200.  Moreover, in footnote 4 of the TransUnion decision, the Court explicitly stated that it was not addressing the “distinct question whether every class member must demonstrate standing before a court certifies a class.”  Id. at 2208 n.4.

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