Duane Morris Class Action Review - 2023 - Report - Page 362
D.
Preemptive Motions To Strike And Dismiss Class Action Claims
Courts consistently shut down efforts by the defense in attempting to derail class
actions at the pleadings stage by filing motions to strike. More often than not, the court
found that striking class allegations prior to discovery is only appropriate in the rarest of
circumstances where the complaint itself demonstrates the requirements for class
certification cannot be satisfied.
Despite being disfavored, the defendant in Winters, et al. v. Loan Depot LLC, 2022 U.S.
Dist. LEXIS 47778 (D. Ariz. Mar. 17, 2022), was able to successfully use the strategy
and push the case towards resolution. The plaintiff, who was alleging the defendant
made illegal robocalls in violation of the TCPA, defined the proposed class as all
persons within the United States who received any solicitation/telemarketing calls from
the defendant using an artificial or prerecorded voice without their consent. The
defendant moved to strike the class allegations under Rule 12(f) on the grounds that the
class as defined by the plaintiff was a “fail-safe class” and not certifiable under Rule
23(b)(1) and (2). Id. at *18. The court agreed. While acknowledging that motions to
strike are disfavored, the court reasoned that it may strike a class definition that is a failsafe, i.e., when a class itself is defined in the complaint “in a way that precludes
membership unless the liability of the defendant is established.” Id. Here, the plaintiff’s
proposed class consisted of all persons who had not consented to the at-issue
robocalls, “requiring a legal conclusion to determine class membership.” Id. at *19. As
such, the court granted the defendant’s motion to strike the class allegations with leave
to amend. Subsequently, the case was resolved.
In Jackson, et al. v. Locust Medical, LLC, 2022 U.S. Dist. LEXIS 197057 (M.D. Penn.
Oct. 28, 2022), the defendant did not find itself on the same side of success. The
plaintiff filed a class action alleging that the defendant violated the TCPA when it, or a
telemarking firm acting on its behalf, placed telemarking calls to the plaintiff on several
occasions despite his telephone number being listed on the National Do Not Call
Registry (NDNCR). The plaintiff defined his class as “all persons in the United States
whose (1) telephone numbers were on the National Do Not Call Registry for at least 31
days, (2) but who received more than one telemarketing calls from or on behalf of the
defendant (3) within a 12-month period, (4) from four years’ prior the filing of the
Complaint.” Id. The defendant moved to strike the proposed class on the grounds that it
did not exclude individuals who may have canceled or opted out of the NDNCR or who
were removed from it by the administrator, and thus failed on both commonality and
predominance. In denying the defendant’s motion, the court reemphasized that in the
context of claims filed under the TCPA, discovery is often needed to determine whether
factual issues exist regarding the class’ members’ business relationships with the
defendants or whether they consented to the at-issue telephone calls, and that
arguments about the class are more appropriately made in connection with a motion for
class certification. In this instance, without discovery, the court held that “it simply is not
possible at this stage of litigation to determine whether some members of the proposed
class were removed from the NDNCR or whether Locust will be able to sustain its
burden of demonstrating that some proposed class members consented to receive
communications from Locust.” Id. at *7.
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Duane Morris Class Action Review – 2023
