Facing a class-action lawsuit alleging violations of the Telephone Consumer Protection Act is not a hopeless case, according to a published report, which details a number of strategies that defendants can use to try and defeat certification.
While the total number of TCPA lawsuits in the ARM industry may have declined during 2017, there were still more than 4,000 filed during the course of last year, according to data provided by WebRecon.
The most common successful defense, the article contends, is arguing the predominance of individualized issues and that members of the class did not consent to receive communications on a class wide basis.
“…defendants have strong defenses to class certification where they can show that: (1) a substantial portion of the proposed class consented to the communications; (2) the purpose and nature of each communication varied from person to person; or (3) identifying who provided consent and who did not would be impractical or impossible,” according to the report.
Successful defenses have also been mounted when arguing that the class representative is inadequate or atypical, “especially where the circumstances surrounding their consent distinguish them from other class members.”
The lawyers who wrote the article conclude:
“Companies facing TCPA class actions should rest assured that the failure to obtain a dismissal on the pleadings is not game over. Many defendants have successfully defeated class certification by demonstrating that (1) individualized issues predominated over common issues, particularly with regard to consent and ascertainability; (2) the proposed class representative was atypical or inadequate; or (3) a class action was not superior. Companies defending against TCPA class actions should partner with experienced counsel to develop a tailored strategy to defend and successfully defeat class certification based on the unique facts and circumstances of their case.”
