TRENDING: Another Court Bifurcates Discovery in TCPA Class Action Suit–This Time All On Its Own

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Quick but important one for you today TCPAWorld.

In Pavela v. Paul Moss Insurance, 2023 WL 3728199 (N.D. Oh. May 30, 2023) the Defendant moved to dismiss a case arguing that it did not make the calls at issue.

The Court refused to dismiss the case outright at the pleadings stage–that’s a very rare phenomenon pulled off by Troutman Amin, LLP and very few others–but it did grant bifurcation of discovery to force the parties to focus on the individual issues first:

The Court finds that bifurcation of discovery to first address the individual liability claims, and then to entertain possible summary judgment motion practice on Plaintiffs’ individual claims, prior to class action discovery, is appropriate under FED. R. CIV. P. 42(b). The Court also finds that the parties should be given an opportunity to complete discovery on Plaintiffs’ individual liability claims prior to any summary judgment motion practice that may be initiated on those individual claims at a later date.

What’s fascinating here is that the Court appears to have bifurcated discovery sua sponte–i.e. without being asked to do so. Defendant did not actually move to bifurcate discovery, it moved to dismiss the case. It lost, but the Court went ahead and gave it an opportunity to limit the case to the individual issues before moving into class discovery.

I have to say this is GREAT work by the Court–the Hon. Donald Nugent for anyone wondering who the judge was. Forcing a defendant into class discovery in a TCPA suit means hundreds of thousands of dollars in expense–and for no reason where a merits-based defense exists. I LOVE to see the Court’s work here, and I love that this is becoming a trend.

If you are facing a TCPA class action remember to seek bifurcated discovery anytime you have an individual defense to the class rep’s claim. (Be cautious, of course, about raising any classwide substantive issues pre-certification lest you waive one-way intervention protections.) Always happy to discuss.

Editor’s Note: Quick update for everyone. Counsel for Paul Moss reached out and advised they “had requested bifurcation in a joint report and then the parties discussed it in the case management conference, so it was not sua sponte.” So there you go!

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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