STARTING OVER: Defendant Sees TCPA Certification Denial Slip Away as Eleventh Circuit’s Ascertainability Standard Shifts

I know it was a nerdy article, but I told you TCPAWorld—this dramatic shift in the Eleventh Circuit’s ascertainability rules is a really big deal.

In Garret, of course, the Eleventh Circuit upended the “administrative feasiability” rules and watered down the ascertainability requirements of Rule 23 in dramatic fashion.

Well just days before Garret was handed down the magistrate judge in Scoma v. Equities, Case No: 2:16-cv-41-JLB-MRM, 2021 U.S. Dist. LEXIS 34321 (M.D. Fl.  February 24, 2021) had entered a ruling denying certification of a putative TCPA class action in favor of TCPA junk fax defendants, determining that it was not possible to ascertain which class members had, and had not, received faxes on physical fax machines.

On appeal to the district court, however, the certification denial was wiped away because—as the district court found—the big Garret ruling changed everything. The magistrate judge’s determination was based on a standard that was overruled. As a result the district court “reluctantly” ruled that the parties and court must start all over again—a fresh round of certification briefing was ordered and the parties must fight out their battle all over again in light of the new prevailing Eleventh Circuit standard.

Nothing tougher than having a win snatched away from you by an intervening change in law. Especially such a shocking change as this one. We’ll keep an eye on this.


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