/>iOver time I developed multiple forms of bifurcation in TCPA cases eventually landing on two major forms that I call “Type 1” and “Type 2” and, occasionally, a combination of both.
Type 1 bifurcation (in Czar parlance) is when a court is asked to permit discovery into JUST the named Plaintiff’s claims so find out whether Plaintiff even has a valid claim before any class discovery is taken. This type of bifurcation is best deployed when: i) there is a UNIQUE defense to plaintiff that is difference than the class (we’ll get to that); or ii) when the client just doesn’t have the resources to deal with class discovery and you have to take a risky pre-certification dispositive motion effort.
Type 2 bifurcation is when a court is asked to separate certification discovery from class merits discovery– and this is a CRITICAL tactic that should be used in most TCPA cases. (Happy to discuss if you have questions about this.)
So in Cameron v. CHW Group, 2025 WL 2336513 (D. Utah Aug. 13, 2025) the Defendant sought Type 1 bifurcation.
It asked the court to limit discovery to issues of solely plaintiff’s individual claim. And the Court granted it. Here’s the meet of the analysis:
First, in contrast to Dillard, there is enough separation between class discovery and individual discovery to warrant bifurcation. This includes discovery concerning whether Plaintiff consented to the calls, whether his particular number is registered on the National DNC Registry, whether Plaintiff is a “residential telephone subscriber”, and whether Plaintiff received telephone solicitations that fall within the TCPA. As noted by other courts, these narrow, potentially dispositive, issues can be decided a the outset of a case prior to costly class discovery. TCPA cases, in the court’s view, present a unique opportunity that warrants bifurcated discovery due to those cost savings.
So that means the case proceeds in very one-sided fashion for a little while. The defendant can go on the attack and the plaintiff can’t do too much– he can only seek evidence from CHW that pertains to the named plaintiff’s individual claim.
This is all great, in theory.
Where the defense needs to be cautious, however, is in highlighting individual issues pre-suit. I briefly posted a blog yesterday about a company that managed to lose a critical substantive issue pre-certification and how that was going to torch them at the certification stage– my tone was too aggressive for my own liking, however, which resulted in me deleting the post and subsequently pledging to be nicer. But the point still stands– losing a major substantive issue pre-certification is TERRIBLE because it sets up a high likelihood of a subsequent certification.
Looking at the claims in Dillard challenging whether the calls he received were “solicitations” pre-certification seems risky. In all likelihood he received the same types of calls as other class members. So asking the court to decide whether the messages he received were solicitations could backfire and lead to a ruling that is common across the class on a major substantive issue– this is exactly what happened in Germain and it is a realy mistake in my view.
On the other hand, focusing on individualized issues such as whether Plaintiff uses his own phone number for residential purposes is a GREAT idea. This highlights an issue that is likely individualized– even if the defense loses a substantive motion on the issue it highlights a fact-intensive merits issue that must be determined on a class member by class member basis.
Understanding the difference between classwide issues and individualized issues likely to drive merits outcomes at trial is critical from the very onset of a TCPA class action. Deploying proper tactics at the discovery phase in light of those issues will often determine success or failure of a defense.
CHW has set itself up well in the Dillard matter, but how it approaches summary judgment will be very important to its overall chances of success in the case. Will keep an eye on it.
