CLASS CERTIFICATION DENIED: Court Says Unsigned Declaration And Unresolved Consent Defense Sink Do Not Call Class

Hi TCPAWorld!

In Garcia v. Star Power Marketing Group, LLC, No. 24-4823, 2026 WL 1830937 (E.D. Pa. June 24, 2026), the Eastern District of Pennsylvania denied without prejudice Plaintiff Weiharik Garcia’s motion for Class Certification in a TCPA and Pennsylvania Telemarketer Registration Act (PTRA) case, finding that an unsigned declaration, an unresolved typicality problem tied to Defendant’s consent defense, and a PTRA cause of action that may not even exist as a private right of action all stood in the way of certification.

Plaintiff alleged that Star Power sent her at least five marketing text messages inviting her to company events, despite her number being listed on the National Do Not Call Registry. She sought to certify both a National DNC Class spanning four years and a PTRA Class spanning two years, defined by area code, on behalf of all persons who received calls from Star Power while it was allegedly acting as an unregistered telemarketer. Star Power initially defaulted, then had its default set aside on consent of the parties and ultimately answered the Complaint saying that Plaintiff’s number had been opted in to its texting database before June 2024, with an option to opt out by texting “stop.” Star Power did not respond to the certification motion at all.

Even unopposed, the Court emphasized, a class certification motion must still survive a rigorous Rule 23 analysis. Plaintiff cleared numerosity easily, relying on her counsel’s declaration that a third-party subpoena to SlickText turned up 2,892 numbers on the DNC Registry that nonetheless received Star Power’s texts, well above the Third Circuit’s 40-person benchmark.

Adequacy was largely satisfied too, with the Court noting counsel’s prior TCPA class experience and finding no reason to doubt Plaintiff herself, except for one problem that ran through the entire opinion. Plaintiff’s declaration in support of her own adequacy was unsigned. The Court flagged this at the outset, citing precedent that an unsigned declaration carries drastically reduced evidentiary value. Plaintiff will get a second chance, the Court noted, and “it would behoove her” to file a signed version next time.

The bigger substantive problem was typicality and predominance, both of which turned on consent. Plaintiff argued that Star Power had effectively admitted it possessed no consent to contact the class, but the Court was not buying it. Star Power’s Answer repeatedly asserted that Plaintiff’s number had opted in to its text database before June 2024 and denied that a class could even exist where consumers voluntarily opted in with the ability to opt out by texting “stop.” That is not an admission of no consent, the Court observed, it is closer to the opposite. And because Plaintiff offered no record citation for her admission argument, no description of how Star Power’s consent mechanism worked, and no class definition carving out anyone who may have actually consented, the Court could not find that consent was a common question rather than an individualized one. Discovery had closed and Star Power had produced no consent evidence, but the Court was clear that silence is not enough. If the real problem was Star Power stonewalling discovery, the fix was a motion to compel, not a bare assertion of admission in a certification brief.

Rule 23(b) also presented a problem. Plaintiff sought certification under both Rule 23(b)(2) and Rule 23(b)(3), without specifying whether she meant the two to run concurrently or as alternatives. That mattered because Plaintiff also sought individualized statutory damages under Section 227(c)(5), and Rule 23(b)(2) does not support a class seeking individualized monetary relief unless either the damages are merely incidental to the injunctive relief sought or the class is certified concurrently with a Rule 23(b)(3) class. Plaintiff’s motion did not make clear which route she was pursuing, so the Court ordered supplemental briefing.  And because the predominance problems described above were unresolved, the Court found Rule 23(b)(3) certification unavailable for the same reasons, leaving superiority undecided until those threshold issues are sorted out.

Then there was the PTRA claim, which the Court flagged as potentially fatal on its own terms. Citing a long line of Eastern District of Pennsylvania decisions, two of them involving Plaintiff’s own counsel as either pro se plaintiff or counsel of record, the Court noted that the PTRA does not create a private cause of action. The statute can sometimes serve as a predicate violation for a UTPCPL claim, but Plaintiff made no allegations tied to that statute either. Rather than certify a class around a claim that may not be cognizable, the Court ordered supplemental briefing on why the PTRA cause of action should not be dismissed with prejudice before any renewed certification motion touching that class will even be considered.

This opinion offers something for both sides to take away. For plaintiffs, this is a reminder that procedural basics still matter even on an unopposed motion: get the declaration signed, address the defendant’s actual pleaded defenses head on, and pick a theory under Rule 23(b) instead of pleading both and hoping the court sorts it out. For defendants, the opinion is a useful illustration that even total non-participation in a certification fight is not necessarily fatal, since the court independently scrutinized the record, caught the unsigned declaration, and held Plaintiff to her burden on consent and predominance regardless of the lack of opposition.

We will keep you posted!