Duane Morris TCPA Class Action Review – 2024

4. Preemptive Motions To Strike And Dismiss TCPA Class Action Claims While certain TCPA class actions reached the class certification stage in 2023, others were stricken and/or dismissed before getting there. Such was the case in Sorsby, et al. v. TruGreen Limited Partnership, 2023 U.S. Dist. LEXIS 3345 (N.D. Ill. Jan. 9, 2023), where the plaintiff filed a class action against the defendant alleging violations of the TCPA. Id. at *1-2. The plaintiff in Sorsby claimed that the defendant called her and others on the National Do-Not-Call Registry and its internal Do-Not-Call list and sought to certify classes consisting of all those called by the defendant who were on either of the lists. Id. at *3-4. The plaintiff asserted that she was initially called by the defendant when it attempted to sell her additional services when she was a customer. Id. at *3. The plaintiff eventually cancelled her service with the defendant, after which she alleged that she received eight calls from the defendant. Id. The defendant moved to strike the class allegations because the plaintiff was not an adequate class representative. Id. The court granted the motion. Id. at *21. The plaintiff argued that the defendant ’ s objections to adequacy and typicality were premature. Id. at *11. The court rejected the plaintiff ’ s arguments. It found that the plaintiff ’ s claims were not typical to those of the class and that she was not an adequate class representative. Id. at *14. First, the court explained that the TCPA does not prohibit solicitations if a consumer consented to receive calls, including when a person has an established business relationship with the entity calling. Id. at *8. The plaintiff argued there were no conflicts between class members who have revoked a business relationship with the defendant and those who had not. Id. at *12-13. The court disagreed. It ruled that there would be a substantive conflict between those who have revoked a business relationship and those who had not, such that the plaintiff ’ s claims were not typical to those of the proposed class members. Id. The court found that the plaintiff alleged that she successfully terminated her established business relationship with the defendant, and thus was subject to an individual defense that would potentially defeat her claims. Id. at *16-17. For these reasons, the court held that the “plaintiff ’ s class allegations are facially and inherently deficient,” as the plaintiff was an atypical and inadequate class representative. Id. at *14. Additionally, the court ruled that the plaintiff ’ s proposed classes failed to meet the predominance requirement, because determining whether class members properly revoked their established business relationships with the defendant would require individualized inquiries, thereby making it unsuitable for class-wide resolution. Id. at *21. For these reasons, the court granted the defendant ’ s motion to strike the class allegations. Id. The plaintiff in Jackson, et al. v. Meadowbrook Financial Mortgage Bankers Corp., 2023 U.S. Dist. LEXIS 41211 (M.D. Penn. Mar. 10, 2023), fared much better. The plaintiff, whose telephone number was listed on the National Do Not Call Registry, filed a class action alleging that the defendant, a mortgage services entity that places telemarketing calls to generate leads, sent him three unsolicited telemarketing calls in one day in violation of the TCPA. The plaintiff ’ s class definition included all individuals in the United States whose phone numbers were on the Do Not Call Registry for at least 31 days, but who received more than one telemarketing call from the defendant within a 12-month period within four years of the filing of the complaint. Id. at *3. Before the plaintiff sought discovery, the defendant filed a motion to dismiss challenging the sufficiency of the class allegations under Rule 12(b)(6), which the court noted was more properly considered a motion to strike the class allegations under Rule 12(f). Id. at *4. Specifically, the defendant argued that the proposed class was a fail-safe class since the plaintiff alleged that a question of law and fact common to the proposed class was whether defendant ’ s conduct violated the TCPA, and as such the question of whether the class exists and the question of whether the defendant is liable “are one and the same.” Id. at 5. At the outset, the court noted that motions to strike are disfavored and rarely granted, and in most cases some discovery is needed for such an evaluation. Id. at *4. Further, the court expressed that it is not appropriate to strike class allegations unless it is readily apparent that the proposed class is a fail-safe and instead allow the parties to proceed with discovery. Id. at *5. The court noted that the proposed classes were not facially uncertifiable if they were properly defined with reference to objective, factual criteria that fall outside the legal requirements of the TCPA. Id. at *6. The court found that the class could be defined with reference to such criteria, and that it was too early to tell whether it would pass muster. Id. at *11. The defendant also argued that the plaintiff failed to meet the requirements of Rule 23, which the court found similarly premature, as the plaintiff had not yet sought discovery or moved for class certification. Id. at *12. The court therefore denied the defendant ’ s motion on the basis that the challenges to the class definition were either without merit or premature, and further evaluation should

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