We’ve said it hundreds of times now—it is absolutely crucial to keep failsafe class definitions and overly broad classes from getting past the pleadings stage in TCPA class actions.  A little vigilance on the front end can prevent a whole lot of issues down the line. 

In Slingerland v. Crisp Mktg., LLC, Case No. 19-62033-CIV-DIMITROULEAS/SNOW, 2019 U.S. Dist. LEXIS 8077 (S.D. Fla. Sept. 10, 2019), the Plaintiff pleaded a classic failsafe class: individuals who received non-emergency calls from the Defendant made through an artificial or prerecorded voice without their consent. Such a class could have—and should have—been stricken at the pleadings stage, but Defendant didn’t act quick enough.  The result:  discovery disaster. 

Plaintiff served discovery seeking documents and information pertaining to all calls that Defendant made to a mobile phone during the class period.  Yikes.  Defendant objected to the requests, arguing that its pleaded consent defense could dispose of Plaintiff’s TCPA claims and requiring class-wide discovery at this time would be unduly burdensome, particularly when it may have a defense to Plaintiff’s claims.  Defendant then filed a motion to bifurcate discovery. 

Not surprisingly, the court denied the motion, declining to effectively stay portions of discovery based on a yet-to-filed motion that could potentially dispose of the case.  So even though Defendant correctly argues that class-wide discovery is not needed pre-certification, the court declined to bifurcate discovery because there was no basis on which to bifurcate discovery.  The court hinted that it may have ruled differently had there been a potentially dispositive motion on file at the time of Defendant’s request, but all of this could have been avoided at the outset had Defendant moved to strike Plaintiff’s improper class. 

With no bifurcated discovery, the court had no choice but to grant Plaintiff’s motion to compel, ordering Defendant to produce, among other items, call logs for every outbound call it made to the putative class members during the class period.  What a disaster. 

It therefore bears repeating yet again—nip improperly pleaded class definitions in the bud.  You’ll be glad you did come the discovery phase.