How To Challenge TCPA Class Action Certification

Klein Moynihan Turco LLP


Klein Moynihan Turco LLP (KMT) maintains an extensive practice, with an international client base, in the rapidly developing fields of Internet, telemarketing and mobile marketing law, sweepstakes and promotions law, gambling, fantasy sports and gaming law, data and consumer privacy law, intellectual property law and general corporate law.
Last month, a magistrate judge for the United States District Court for the Middle District of Florida issued a useful decision in favor of Defendant, recommending that Plaintiff's...
United States Consumer Protection
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Last month, a magistrate judge for the United States District Court for the Middle District of Florida issued a useful decision in favor of Defendant, recommending that Plaintiff's Motion to Certify a Telephone Consumer Protection Act ("TCPA") class be denied. In Sharfman M.D.P.A. v. Precision Imaging St. Augustine LLC ("Sharman"), Plaintiff sought to certify a class of individuals or entities who received an unsolicited fax advertising Defendant's imaging and radiology services. Plaintiff alleged that Defendant's fax message violated the TCPA because it was sent without first obtaining the recipient's consent. As our readers are aware, the TCPA is a federal statute that restricts certain types of telemarketing communications.

Every day, numerous complaints under the TCPA and/or its state analogs are filed across the country. Many of these lawsuits are filed as TCPA class actions, which carry significant penalties should the plaintiff prevail. The Sharman decision is notable, not only because Defendant prevailed in opposing Plaintiff's Motion to Certify the TCPA Class ("Motion"), but also because it effectively details how to address a number of class certification factors.

What Are the Primary Components of a Motion to Certify a TCPA Class

A plaintiff typically begins by defining his or her putative TCPA class. The class definition should allow a court to ascertain who the putative class members of the proposed class are. Normally the proposed class is defined according to a particular allegedly violative action taken by the defendant.

Next, the plaintiff must satisfy the four factors set forth in Federal Civil Procedure Rule 23(a) and at least one Rule 23(b) factor. If the plaintiff fails to satisfy even one of the Rule 23(a) factors, the presiding court does not need to proceed to Rule 23(b). The four Rule 23(a) factors are:

  • Numerosity: the class is so numerous that joinder of all members is impracticable;
  • Commonality: there are questions of law or fact common to the class;
  • Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
  • Adequacy of Representation: the representative parties will fairly and adequately protect the interests of the class.

Why Was the Sharman TCPA Class Motion Denied?

In Sharman, the plaintiff moved to certify a TCPA class comprised of :

All persons or entities who were successfully sent a Fax by Defendants (1) on or about February 9, 2022, offering reduced pricing for heart scans, (2) on or about February 15, 2022, that states "Join Us for Mammos and Mimosas this Weekend," or (iii) [sic] on or about February 17, 2022, that announces new members of Precision Imaging Centers, and which advises of Saturday hours.

Initially, the Magistrate Judge determined that Plaintiff had satisfied some of the certification requirements. Specifically, the Judge found that the proposed class was adequately defined such that membership was capable of determination, and that numerosity was satisfied because the Plaintiff had alleged that the class was comprised of 4,922 members. In addition, because Plaintiff had identified six common questions of law or fact that could be resolved on a class wide basis, the Magistrate Judge concluded that commonality had been sufficiently established.

Nevertheless, the Motion was ultimately denied because Plaintiff was unable to satisfy any additional certification requirements. Specifically, as to typicality, Defendant successfully argued that an individualized investigation would be necessary to determine whether each proposed class member provided express permission to receive the subject faxes. Ordinally, if factual differences between the lead plaintiff and the class "predominate," typicality is defeated. As a result, because Defendant provided documentary evidence in support of its argument concerning the necessity of individualized consent inquiries, the Magistrate Judge concluded that Plaintiff was unable to meet its burden of establishing typicality.

The Magistrate Judge also determined that underlying claims differed between Plaintiff and those class members that had consented to receive the subject faxes. Because Plaintiff was unable to reconcile this tension, the Magistrate Judge deemed this failure fatal to the adequacy of the representation factor.

Based upon the foregoing, in addition to other considerations, the Magistrate Judge recommended that Plaintiff's Motion to certify the TCPA class be denied.

Hire Experienced Attorneys to Carefully Examine TCPA Complaints

Many TCPA complaints are filed as putative class actions. Readers of this blog know that the TCPA allows for the recovery of up to $1,500 per violation. It is common for putative classes to be compromised of tens of thousands of individuals, making the defense of a TCPA class action a potentially "bet the business" proposition. Rulings, such as Sharman, underscore the importance of evaluating every class certification factor as part of a successful TCPA class action defense. Remember that plaintiffs bear the burden of proving each Rule 23(a) factor and at least one Rule 23(b) factor.

Businesses should hire experienced TCPA attorneys who stay up to date with ever-evolving case law and regulatory changes. Seasoned TCPA attorneys can help to: 1) ensure telemarketing law compliance and; 2) explore all avenues to a successful TCPA litigation defense.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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