So just last week I held a training for my team. The topic–the importance of enforcing objective pleading requirements for class definitions.

Quite a few of you are probably wondering what the heck I just said. So let me explain.

Class litigation is the exception to the general rule that individuals have to bring their own case to recover damages in a case. A class action allows a single individual to represent numerous unnamed class members who are similarly situated FACTUALLY to one another.

In other to state a valid class, a complaint must include a definition that is OBJECTIVELY AND FACTUALLY defined. It CANNOT, for instance, allege a class of everybody who was injured on behalf of illegal conduct.

The reason for the rule requiring objective pleading is several. Most importantly it serves to assure the Defendant is protected from class definitions that assure members have valid claims– a so-called failsafe class is one where a member of a class either automatically wins (because the class definition assumes victory) or is never bound by the ruling (because he was never part of the class since he didn’t win the merits issues.)

But a failsafe class is just one–and rather extreme–example of a violation of the objective pleading requirement rule. ANY MERITS issue built within a class definition is prohibited for the same reason–if a class member is in a class that is defined based on the merits he/she has already WON a crucial issue before certification has even taken place. That gives him/her a leg up over anyone else out there hoping to bring their own case and also ties one of the defendant’s hands behind his/her/its/their back.

Let’s look at an example.

Imagine a class definition reading: All individuals who received calls from Defendant using the same system used to call the Plaintiff. 

This class may not be certifiable for a number of reasons (overbreadth, lack of commonality, etc.) but it is OBJECTIVELY defined. Each element of the definition can be determined looking at real and determined facts existing in the universe.

Now look at this definition: All individuals who received calls from Defendant using an ATDS.

Similar, except now instead of a fixed dialer being at issue the definiton turns on a MERITS determination–whether the class member was called using a system that meets the edfinition triggering the TCPA. It might be attractive for the plaintiff’s lawyer to only represent consuners called using such technology, but this is a very clear example of merits baed class pleading.

Other examples are more subtle: All individuals called for telemarketing purposes while their number was on the National DNC registry. 

This may seem objective, however the phrase “telemarketing” has a clear definition under the TCPA and CFR. Thus inclusion of the term in a class definition constitutes merits-based pleading. A better definition would look at a specific campaign, call center, or time frame to define the class of calls at issue objectively.

Turning to our case at hand, in Thompson v. Vintage Stock, 2024 WL 492052 (E.D. Mo. Feb 8, 2024) a court was faced with class definitions that built the idea of consent into the definition–in other words, all class members within the class would have been determined to have no consented as a matter of law. That raises the precise merits concerns outlined above. So the Court struck those classes from the complaint.

Importantly, the court also struck a class defined under a state law that defined “telephone solicitations.” Because the class included that phrase the Court correctly determined the class was defined based on the merits of the case:

One class definition in count three similarly includes a fail-safe class, so the Court strikes that allegation. The Thompsons outline a proposed class including persons who “received more than one telephone solicitation…in violation of” Missouri Revised Statute 407.1098. Doc. 19 at ¶ 62. To certify this class, the Court would have to determine whether a text message is a “telephone solicitation” under Section 407.195, and whether it violates the statute at issue. On its face, this proposed class requires the Court to address contested elements of liability. Accordingly, it is an impermissible fail-safe class, and the Court strikes this definition. Doc. 19 at ¶ 62 

Notice that the Court incorrectly characterizes this class as a “failsafe”–it likely does not technically meet the failsafe requirements because it is unclear that everybody within the class definitely has a valid claim. But the fact that the class was plainly defined on the basis of merits criteria means the court did the right thing by striking this class down.

Great work by the Chief Judge out there in Missouri on this one. Thank you for following the rules and protecting the Defendant from mischief!

Very important for TCPA defendants to protect themselves in TCPA cases by enforcing the objective pleading rules–they are there for a VERY important reason and failing to strike such class definitions can lead to terrible consequences as the case proceeds deeper into discovery and the certification stage.