Real quick, the folks over at Digital Media Solutions–where have I heard that name?– and SolidQuote, LLC lost a bifurcation motion in a TCPA class action last week that shows just how tough these cases can be to defend.

In Klassen v. DMS, 2023 WL 5497865 (D. Colo. Aug. 23, 2023)–speaking of Colorado!— defendants claimed the Plaintiff had initiated an inbound call to DMS who then transferred it to SolidQuote.

The Plaintiff, however, disagreed: “Plaintiff argues that the Defendants misrepresent the facts of the case and that Plaintiff never called DMS or consented to receive calls from them.”

Regardless, Defendants argued that they should not be subject to crushing class discovery–extremely expensive and burdensome–until the issue of what really happened with the phone call from/to Plaintiff is resolved.

While I couldn’t agree more, the Court disagreed. Determining that there were overlapping issues between merits and certification (without identifying them) the Court found “Defendants have not identified any unique prejudice they would suffer if discovery is not bifurcated and class discovery is not stayed.”

I mean, seems like wasting $100k in fees and costs dealing with discovery that might not ultimately matter is pretty prejudicial. But…

While this ruling is pretty awful, it is actually a useful too for discussion. Many times TCPA Defendants are frustrated with a cost of the proceeding or feel strongly that because Plaintiff did this or that the case should immediately end. Unfortunately it doesn’t always work that way.