OPT OUT AND MISS OUT! Court Says Plaintiff Can’t Lead a Class Action After Opting Out of Prior Settlement!

In Brown v. Citibank, N.A., No. 3:25-cv-5119-TL, 2026 WL 3307024 (W.D. Wash. Nov. 2, 2026), the Western District of Washington rejected a TCPA plaintiff’s attempt to transform her individual lawsuit into a class action after she opted out of a prior class settlement involving the same defendant. The Court held that opting out preserved her right to pursue her individual claims, but not to launch a competing class action on behalf of other members of the prior class.

The case began when plaintiff Tamyka Brown filed a lawsuit against Citibank, alleging that she received at least 46 unsolicited prerecorded robocalls between October 29, 2023, and December 19, 2023.

According to Brown, Citibank initiated or caused these calls to be made to her cellphone without the required consent, in violation of the TCPA.

Pretty straightforward, right?

But Brown faced one problem: Before she filed her lawsuit, Citibank had already been involved in another TCPA class action, Head v. Citigroup Incorporated.

That case involved individuals who received artificial or prerecorded calls from Citibank concerning past-due credit card accounts between August 15, 2014, and July 31, 2024, under the circumstances specified in the certified class definition.

The Head settlement received final approval in January 2025. Brown, however, chose to opt out, expressly stating that she wanted to pursue her claims independently.

And she was certainly entitled to do so. The issue arose when Brown attempted to turn her individual lawsuit into another class action.

After Citibank filed its answer and asserted affirmative defenses, Brown sought leave to amend her complaint to pursue claims on behalf of a nationwide class.

Her proposed class was substantially similar to the class previously certified in Head, but was broad enough to include individuals who allegedly received robocalls after the Head class period ended.

Citibank opposed the amendment, arguing that the proposed class action would be futile and prejudicial. And the Court agreed that the proposed class claims could not proceed.

The Court began by examining Brown’s proposed class, which essentially consisted of two groups: individuals who received calls during the Head class period but opted out of the settlement, and individuals who received calls after the class period ended on July 31, 2024.

The problem was that Brown could not represent either group.

Starting with the first group, the Court explained that Brown forfeited her right to represent other members of the Head class when she opted out of the settlement. The Court emphasized that a person who opts out receives the right to go it alone, not to launch a competing class action.

In other words, opting out allows a plaintiff to pursue their own claims independently. It does not give them the right to turn around and bring another class action on behalf of individuals who were part of the original class.

As the Court explained, competing class actions involving substantially the same claims undermine the efficiency that class action litigation is intended to promote and risk duplicative proceedings, unnecessary fees, and inconsistent outcomes.

So, by choosing to opt out of Head, Brown preserved her individual claims but gave up her ability to represent other members of that class.

The Court next addressed whether Brown could represent individuals who allegedly received robocalls after July 31, 2024.

Under Rule 23, a proposed class representative’s claims must be typical of those of the class members she seeks to represent.

And here, Brown’s claims were not.

Brown alleged that she received calls between October and December 2023, but did not allege receiving any calls after July 31, 2024.

But the Court’s reasoning went beyond the dates of the calls.

In her proposed amended complaint, Brown alleged that Citibank intentionally or recklessly made as many debt collection robocalls as possible before the Head class period expired, believing that liability for those calls would be released through the settlement.

But if Citibank’s alleged motivation was to make as many calls as possible before the settlement deadline, how could that same motivation apply to calls made after the deadline had passed?

It couldn’t. And the Court recognized exactly that.

The Court explained that Brown’s theory of misconduct did not apply to individuals who received calls after July 31, 2024. This distinction was particularly important because her allegations of intentional or reckless conduct were relevant to the potential recovery of treble damages under 47 U.S.C. § 227(b)(3)(C).

In other words, Brown’s own theory of liability distinguished her claims from those of the proposed post-settlement class members. And because Brown had not received any calls during that later period, she could not establish that her claims were typical of theirs. So ultimately, Brown’s attempt to expand her proposed class beyond the prior settlement period failed to satisfy Rule 23’s typicality requirement.

The Court denied Brown’s request to amend her complaint to pursue class claims, finding that the proposed class could not satisfy Rule 23’s certification requirements. However, the Court permitted her to amend her complaint to include additional factual allegations supporting her individual claims.

So, the lesson here? If you choose to go it alone, you may just have to stay that way!