CHANCES SUNK: TCPA Plaintiff Deemed Inadequate to Represent Class After Throwing Phone in Mississippi River

A TCPA plaintiff was recently deemed inadequate to represent a class after throwing the critical piece of evidence in the case– his cell phone– into the Mississippi River and you can’t make this stuff up.

In Smith v. Examworks, 2026 WL 2823260 (D. M.D. Sept. 21, 2026) the court denied certification in a class action arising out of prerecorded informational calls made by a Geico vendor to schedule IMEs.

The denial was based on a number of critical findings– I will cover a few others in a separate blog in a moment– but I wanted to focus first on adequacy.

In order to obtain certification of a putative TCPA class action the plaintiff must demonstrate he is adequate to represent the class. This usually means showing he suffered the same sort of injury as class members and does not have a conflict of interest with the class.

In Smith the court found a conflict with the class arose because he had a unique individual problem with his case that other class members would not have– he had thrown the key piece of evidence in the case (his phone) into the Mississippi River at some point during the litigation.

With the phone destroyed the defendant could not conduct a forensic review of the phone to determine, for instance, who had been texting and what websites he had visited–or even that calls had actually been received on the phone. The defense also argued Plaintiff destroyed the phone because he had something to hide, which might have been true.

Regardless of whether any case-sinking details were on the phone the act of destroying it plainly did not sit well with the court and the court determined Plaintiff was not adequate as a result– and made quite a few other interesting findings as well that were likely driven by the court’s angst over the destruction of evidence.

Unfortunately the opinion does not explain why Plaintiff tossed his phone into the river and for some reason I’m really curious about that. Oh well.

The phone sank to the bottom of the Mississippi and took Plaintiff’s chances of certification with it.

Bottom line here– don’t destroy evidence and don’t let the other side get away with it either.

And you don’t want to let your chance to watch Deserve to Win Podcast Ep. 52 get away–especially if you run a GenAI platform and are hoping to exit one day!

Chat soon.