/>iOne of the most frustrating parts of defending class litigation is when a court allows a party to re-define their class at the time they seek certification.
If you pause to think about that it is absolutely wild.
A defendant might litigate a case for 18 months focused on one class definition, go through discovery, complete expert reports and then have the plaintiff completely change course with virtually no warning.
Terribly unfair and inconsistent with due process in my view.
Better practice is for a plaintiff to give the defense fair warning of their true intentions at the pleadings stage–which is why a motion to strike overly broad classes makes so much sense and Troutman Amin, LLP leverages such motions frequently.
But in an unusual case GEICO and ExamWorks, LLC are sued in a TCPA class action with a plaintiff who is voluntarily seeking to amend his class. And interestingly GEICO opposed the amendment effort.
In Michael Smith v. ExamWorks, 2025 WL 1262931 (D. Md. May 1, 2025) the Plaintiff suing for unwanted robocalls allegedly made by ExamWorks on behalf of GEICO.
The current class definition is: “all persons in the United States” who: (1) were called with a pre-recorded voice message by ExamWorks (or any party on behalf of ExamWorks); (2) to their cellular telephone provided to ExamWorks by GEICO; (3) during the four-year period prior to filing the complaint in this action through the date of certification; and (4) where the called party did not provide the cellular number called to either GEICO or ExamWorks.
The Plaintiff sought to amend the class definition to remove the reference to GEICO in the final sentence of the definition. Thus it would read: “where the called party did not provide the cellular number called to ExamWorks.”
Now in my view, this was a pretty classy move by the Plaintiff. They are giving the defense notice of a planned change before filing for certification and really pinning themselves down to a new definition so the defendants don’t need to worry about another late-stage change. Plus, in my view the newly-defined class is actually harder to certify than the original class. So I would have taken this amendment with a thank you.
But GEICO and ExamWorks both decided to oppose the amendment on a bunch of grounds. Their arguments are pretty weak and basically boil down to “the class can’t be certified and is not fair that they’re changing their definition” to which the court responded (properly) that it is too early to determine class certification, on the one hand, and not too late to change a definition, on the other.
The Court noted in particular that Plaintiffs’ effort to amend was classy and “seems to minimize surprise and unfair prejudice to Defendants.”
So yeah. Defendants objected to something they probably should have been grateful for. If only all TCPA defendants were so lucky.
