Serious question.

When is the last time a #biglaw firm defeated a certification effort in a TCPA case?

But when was the last time any firm in the AmLaw 200 has done it? I can’t think of one in the last year, but maybe I am forgetting about something.

Regardless, it certainly wasn’t yesterday as another #biglaw firm just lost a critical certification motion in the incredibly rare setting for a text string revocation class action.

That should literally never happen.

To certify such a case the court would have to determine that notes from the defendant’s system are so similar that they can be adjudicated as a revocation in a single bucket. That’s definitionally impossible unless agents are trained to use specific coding– but that was not the allegation.

Nonetheless, in Hill v. Money Source, 2025 WL 1331702 (D. Az. May 7, 2025) the Court certified the TCPA class action because Plaintiff claimed–and defendant apparently did not deny– that it lacked a policy of honoring oral consent.

Pause.

I give away a lot of free tips tricks and advice around here. Let me give everyone– including the struggling biglaw litigators out there– a huge tip.

Defeating class certification starts with explaining why the Defendant has a policy of TCPA compliance. That’s why violations are exceptions. And exceptions are unusual mistakes that can only be found on individualized evidence. Everything else is window dressing.

But apparently Money Source didn’t even address the Plaintiff’s central argument– that it lacked a policy of honoring revocation.

Now, perhaps it couldn’t because perhaps it is true that Money Source did not comply with the law as a matter of policy.

Pause again.

If that is true then wise counsel would settle the case. You don’t go to certification when your client has screwed up and doesn’t even have a viable TCPA compliance effort in place.

So either biglaw screwed up by failing to raise a policy central to the certification effort, or it screwed up in not counseling its client to resolve the case.

Just my opinion, of course.

But my opinion gets even stronger when you consider the actual class definition does not even contain the text string component. Here is the class definition that was certified:

All persons throughout the United States or its territories (1) to whom Defendant placed, or caused to be placed, a call, (2) directed to a number assigned to a cellular telephone service, (3) in connection with which Defendant used an artificial or prerecorded voice, (4) after the called party requested that Defendant stop placing telephone calls using an artificial or prerecorded voice to their cellular telephone, as recorded in Defendant’s business records, (5) from four years prior to the filing of the Complaint through the date of class certification.

Wow, that is wild.

The class definition does not refer to any specific words or statements that were made, just a vague assertion the called party request Defendant “stop placing telephone calls using an artificial or prerecorded voice.” To my eye then that requires an absolute quote of this phrase in the notes, and I can guarantee those words aren’t there. Otherwise this class is meaningless and contains no members, or is too uncertain to be based on objective criteria.

Now I have not looked at the briefing to see if these arguments were made or not but it doesn’t seem like it. Notably the Court could not figure out how many people were in the class and actually chided Defendant for that:

“[p]resumably Defendant could simply tell the Court how many members would fall within a class constructed along the lines identified in its Response brief, as Defendant possesses all the requisite information to conclusively resolve this issue. Defendant has not done so.” 

It is the Plaintiff’s burden to introduce evidence of numerosity not the Defendant’s. And given the class definition no one would know for sure who is in the class– it is just too vague.

In my view this class should never have been certified and it is up to the Defendant to make that clear to the Court. Regardless, at the end of the day Money Source controls its litigation strategy, not its lawyers, so some fault lands on their shoulders as well but it is just wild to me that this case ended up the way it did.

On the other hand, the Court did thank the parties for doing “excellent briefing” and providing “a great volume of on-point authority,” which is also kind of funny.

I mean what else is #biglaw known for other than spending a ton of money doing a bunch of useless briefing? Hahaha.

I cannot believe TCPA freeform text cases are getting certified again. Thought those days were gone after Abbas pulled it off one time back in 2012. Seriously, it has been 13 years since one of these cases was certified (although Molina might be on the path to a similar result right now.) An at least when Abbas did it he embedded the text string data into the class definition so that it made sense to certify it. Sigh.

Anyhoo pretty clear lessons here:

1. Make sure you have a policy of honoring revocation received via any reasonable means; 
2. You CANNOT refuse to honor oral revocation unless you have a CONTRACT that affords express written consent as a MATERIAL TERM of that agreement (and even then there is a split of authority on the issue);
3. The FCC’s new revocation rules expand further the manner in which revocation may be given by a consumer so make sure you have these things accounted for;
4. Hire #biglaw to defend you at your peril (except Skadden and Squire– they’re really good).

As to number 4, it really is important you ask attorneys if they have defeated certification in TCPA class action cases. There are remarkably few lawyers who have. And if they merely tell you “we handle these cases all the time” or “we’ve handled a ton of these” they might just be an outfit that litigates and then settles.

Do your homework folks, because your choice of TCPA class litigation counsel is legitimately one of the most important decisions your company will ever make.