Unmask The Real Class: Latest Disastrous TCPA Discovery Decision Shows Why Moving to Strike Class Allegations is So Essential

I’ve said it a hundred times—do not let failsafe class definitions or overly broad classes slip past the pleadings stage in TCPA class actions. Doing so sets you up for disaster in the discovery phase. This is critical stuff.

Example. In Bellenger v. Accounts Receivable Mgmt., CASE NO. 19-60205-CIV-DIMITROULEAS/SNOW 2019 U.S. Dist. LEXIS 153672 (S.D. Fl. Sept. 10, 2019) the Plaintiff alleged a class of all individuals that received calls without consent. This is a clear failsafe class that should never have survived the pleadings stage. But it did.

So we move to discovery. And guess what? Disaster.

Plaintiff served discovery demands seeking all outbound call records and consent documents for every pleaded class member. Defendant objected the demand was overly broad because the case was really just about wrong number calls. Recall: TCPA debt collection cases are virtually impossible to certify outside of very narrow contexts because individualized issues of consent are always going to predominate. So Plaintiff’s theory in the case—i.e. his “real” class—is likely a wrong number class; a tiny subsection of his pleaded class. That means the vast majority of the records being sought are completely irrelevant to the “real” class.  But that is not what the Plaintiff pleaded. Instead the “real” class lay hidden within the overly broad class definition that slipped past the pleadings stage. And since the pleaded class was the only class the Magistrate Judge was working off of, the Defendant’s objections were (somewhat predictably) overruled. The discovery tracked the class definition in the complaint and that was all the Magistrate Judge was concerned with.

Making matters worse, Defendant had not sought bifurcated discovery (i.e. class merits only after certification.) So whereas the Defendant (correctly) pointed out that the demanded records are not needed pre-certification—which is absolutely true–the Court overruled the objection because “[t]he Defendant did not move to bifurcate discovery in this case and the type of discovery sought is within the bounds of Rule 26(b)(1).” The result—an extremely painful order requiring production of evidence on the merits of class member claims who may not even end up being part of a certified class. This is expensive and intrusive. Plus it puts a great deal of consumer data at risk needlessly. What a shame.

Folks I cannot say this more clearly—you simply cannot sit back at the pleadings stage in TCPA class actions and expect it will all work out in the end. TCPA litigation requires a front-end strategy. TCPA class action lawyers frequently plead the broadest possible classes–  definitions that could never actually result in certification. Generally these lawyers have a “real” theory of certification but hide it from defendants within form allegations. There is little downside to doing so because courts frequently allow shifting class definitions at the certification stage–although they really should not.  By hiding their “real” class the Plaintiff’s lawyers afford themselves maximum flexibility and the advantage of sandbagging the Defendant with their real theory. But most importantly, the broad class allegations make broad discovery possible– turning up the heat (and expense) on Defendants.

Moving to strike overly broad and improper class allegations, however, forces the Plaintiff to show their hand and plead the “real” class up front– that way the Defendant knows what the target is throughout the case and the Magistrate Judge can clearly see why discovery demands are, or are not, actually relevant.

At bottom, class discovery orders such as the one entered in Bellenger are potentially disastrous and increasingly common, but should also be avoidable if the proper measures are taken at the pleadings stage. Investing on the front end to “unmask the class” can save you a world of hurt later in the case.

Just one more reason why TCPA class litigation is not for the faint of heart, or the green of horn.

 

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