Telephone and Texting Compliance News: Litigation Update — Two Courts Agree With Defendant’s Challenges to Imprecise TCPA Class Definitions

Although most courts will punt on a motion to strike a class definition at the pleading stage, two recent rulings reveal that such motions can succeed.

In Sowders v. Scratch Financial, Inc., No. 23-0056, 2023 WL 7525900 (S.D. Ohio Nov. 14, 2023), the defendant filed a motion to dismiss or alternatively strike the plaintiff’s class allegation arguing that the following class definition was overbroad and therefore facially uncertifiable:

All persons and entities who were sent one or more facsimiles from Scratch Financial, Inc., on or after February 20, 2019, containing any material advertising the commercial availability or quality of Scratch's property, goods, or services, and not including the opt-out notice required by 47 U.S.C. § 227(b)(2)(D), but who did not sign-up or register to do business with Scratch.

Id. at *5. The Southern District of Ohio disagreed with the defendant’s overbreadth arguments, but nevertheless found that the proposed class definition was an impermissible fail-safe class. Id. at *9-10. 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 proposed class definition rendered the putative class an impermissible fail-safe class (ie a class that only includes members who are entitled to relief). Id. at *10. Even though the court gave the plaintiff the chance to amend the proposed class definition consistent with the court’s analysis, the defendant’s win took some wind out of the plaintiff’s sails and could provide settlement leverage.

In Klassen v. Solid Quote, 2023 WL 7544185 (D. Colo Nov. 14, 2023) the defendant also sought to strike a proposed class definition at the pleadings stage. The plaintiff defined the class as follows:

Do-Not-Call (DNC) Registry Class: All persons in the United States where: (1) the person's telephone number was registered on the National Do-Not-Call-Registry for 30 or more days; (2) the person's number was registered to an individual rather than a business; (3) the person received two or more calls from DMS on behalf of SolidQuote within 12 months; and (4) those calls were for the purpose of soliciting SolidQuote's products and/or services, from four years prior to the filing of the Complaint through the date a class is certified.

The defendant argued that the class definition should be stricken because only those who personally subscribed to the DNC list can be included in the class. The court agreed.

Even though the court did not strike the class completely, it used its discretion to modify the class definition to include only persons that personally subscribed to the DNC list. In doing so, the court significantly limited the scope of discovery that the plaintiff’s counsel will be entitled to receive should the case proceed into discovery.

Sowders and Klassen are a helpful reminder that Telephone Consumer Protection Act defendants should scrutinize proposed class definitions and challenge them when appropriate as a way to gain leverage and narrow the number of proposed class members.

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