TCPA Quick Hitter: Court Rules Class Notice Need Not Advise Class Members They May be Deposed or Subpoenaed to Trial

Although I have been fortunate enough to defeat every certification effort I’ve been involved in to date–*knocking on so much wood*– I have recently been called in to assist on a few cases post-certification to help right the ship. As part of that process I have been confronted with a rather odd question—what should class notice look like in a certified TCPA case?

That issue was recently addressed in the case of McCurley v. Royal Seas Cruises, Case No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 137594 (S.D. Cal. Aug. 14, 2019) and answered to some degree.

We previously reported on the McCurley certification—a very large class that was certified owing, in large measure, to the Defendant’s inability to prove that lead aggregators had actually obtained consent from class members. The most recent ruling resulted from a spat between the parties as to the manner and content of the notice to be sent to class members advising of the certification.

In the first place the court made clear that direct mail notice must be attempted whenever possible. The court rejected a proposal to notify the class members—although there are many of them—using a publication process. The court also addressed what sorts of information does and does not need to be included in the notice.  In the McCurley court’s view all that is required is a short and plain assessment of the issues in the case; despite Rule 23’s language, defenses need not be spelled out to any specific degree.

Moreover, although class members must be clearly told how to exclude themselves from the class, Defendant was not entitled to include a laundry list of potential downsides to staying in the class. For instance, Defendant’s request to notify the class that participation in the class might result in the class member being deposed or being subpoenaed to testify at trial was denied by the court. As the McCurley court put it— “the Court overrules Royal’s objection for the simple reason that Rule 23 does not require any of this information to be provided in a class notice.”

So there you have it—a quick little decision to help guide you in the unfortunate event you find yourself notifying class members of a certified TCPA class action. Hope you never have to use it.


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