CLASS NOTICE IS JUST NOTICE: Court Rejects TCPA Defendant’s Efforts to Frontload Ascertainability Effort into Class Notice Paradigm

14 years ago before I handled my first piece of class litigation I sat down in a local coffee shop–a place called Kaffa that used to be really good–and read Newberg on Class Actions cover to cover.

While it undoubtedly set the groundwork for me to become the successful class litigator I am today, more than that digesting the treatise really gave me a relatively simple sketch of the class litigation process that has enabled me to fully understand the entire lifecycle of complex litigation. Most importantly, it has enabled me to avoid some of the traps that other litigators fall into. More folks should give ole Newberg a read.

I have found that most litigators that havent read Newberg don’t really understand certain aspects of class litigation. And the class notice procedure is DEFINITELY one of them.

Defense lawyers, perhaps understandably, often want to use the class notice stage as some sort of disqualification round–advancing the self-identifying affidavit component of a post-trial ascertainability paradigm (which I disagree with) to a pre-trial stage.  But that is not what class notice is for.

Indeed, class notice doesn’t even need to be sent exclusively to class members (and it rarely is.) All that is required is that some reasonably logical effort to is made to make sure that folks that might be in the class are notified of the class action so they can take advantage of their right to OPT OUT of the class if they are in it.

This misunderstanding may seem like no big deal–after all it seemingly only arises after certification is decided–but misconstruing class notice procedure is actually one of the biggest mistakes a class defense lawyer can make; especially in a wrong number TCPA case.

The reason is that class action defense attorneys often raise data and ascertainability issues in OPPOSING certification through the lens of giving appropriate class notice. But that is just all wrong. Again class notice doesn’t much impact the defendant’s due process rights. One the other hand, the inability to ascertain class members can pose a HUGE hurdle at TRIAL–especially where a defendant properly assails post-trial administration efforts to identify class members using self-identifying affidavits.

But focusing on class notice in opposing certification usually results in a judicial shrug–and a swift certification order. And that was the case in the old Snap Finance decision from a few months back.

After losing certification, the Snap Finance defendant than launched a lengthy objection to the class notice plan the Plaintiff had put together. Specifically, Snap Finance wanted the notice plan to include affidavits that might disqualify class members.

The Court gave Snap’s arguments due consideration but ultimately concluded, well, that’s just not how it works. Class notice is just notice. Its not some sort of barrier to a case proceeding to trial. As long as the notice faithfully identifies the name and nature of the case and advises class members of their rights, notice is fine.

As the Court correctly points out, at some point in the proceeding the wheat must be separated from the chafe–and while I do not fault the defendant for trying to frontload that inquiry–procedurally that’s just not what class notice is for.

The ruling is worth reading for anyone who wants to better understand class action procedure (but not as worth reading as Newberg.) Snap Finance Ruling


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