Shook, Hardy & Bacon Denver Associate Kali Backer discusses tactics for defeating class certification in Telephone Consumer Protection Act (TCPA) lawsuits on the American Bar Association’s (ABA) Consumer Litigation Committee’s website.
With lawsuits alleging TCPA violations on the rise, Backer explains that class certification "has become a critical stage in TCPA litigation because it gives defendants the opportunity to convert a multimillion-dollar case into a case worth as little as five hundred dollars." Outlining five strategies to defend against TCPA claims, she notes that identifying class members who may have consented to receive calls or faxes "is one of the most common and effective ways to attack a motion for class certification."
"Agreeing to particular provisions in customer contracts, enrolling in rewards programs, filling out credit applications, and speaking with customer-service representatives are all ways potential class members can consent to calls or faxes," writes Backer. "The more ways potential class members could have consented, the more individualized the issue of consent becomes, thereby precluding certification."