Duane Morris Class Action Review - 2023 - Report - Page 363
Another noteworthy case that came out of the District of Arizona in 2022 is Webb, et al.
v. Circle K Stores, Inc., 2022 U.S. Dist. LEXIS 200682 (D. Ariz. Nov. 2, 2022), a class
action brought by a plaintiff alleging the defendant sent him unsolicited text messages in
violation of the TCPA. The defendant responded to the complaint by moving to strike
certain of the class allegations on the grounds that the class could not be pursued as
pled, which Plaintiff opposed. The court noted that the “parties’ briefing is based on the
incorrect assumption that the class definition contained in a complaint dictates the
precise contours of the class that may be certified.” Id. at *1-2. In denying the
defendant’s motion to strike, the court held that potential flaws in a complaint do not
necessarily prevent it from proceeding as a putative class, and that as long as the
complaint gives adequate notice of the claims being alleged, the court has discretion to
modify class definitions. Thus, if all a defendant can point to in support of its motion to
strike are minor flaws in the class definition, it can expect a court to save the fine-tuning
for the certification stage, not the pleadings stage.
Finally, the ruling in Canady, et al. v. Bridgecrest Acceptance Corp., 2022 U.S. Dist.
LEXIS 17064 (D. Ariz. Jan. 31, 2022), illustrates that moving to strike class allegations
promptly is necessary. In this case, the plaintiff alleged that the defendant violated the
TCPA when it placed calls to her cell phone without her consent, using artificial or
automated voice. The plaintiff sought to represent a class consisting of all persons to
whom the defendant called without their consent using a pre-recorded message. At the
time the defendant moved to strike the class allegations from the complaint, the case
had been pending for approximately two and a half years, it had already filed an answer
to the complaint, the court had agreed to bifurcate the discovery process (at the
defendant’s request), and the deadline to complete certification-related discovery was
pending. The court denied Defendant’s motion to strike on the basis that it was
untimely, but went on to similarly emphasize that motions to strike are rarely granted.
E.
Rulings Granting Summary Judgment Without Deciding Class Certification
Courts frequently receive competing summary judgment motions in TCPA class
litigation, and some courts have discussed the impact of the one-way intervention rule
when determining which motions to rule upon, if any, prior to ruling on the competing
summary judgment motions. Furthermore, courts have been more frequently granting
summary judgment without first deciding class certification motions.
In Derossett, et al. v. Patrowicz, 2022 U.S. Dist. LEXIS 173564 (D. Md. Sept. 23, 2022),
the court ruled on competing summary judgment motions and, as a result, it determined
that the plaintiff’s motion for class certification was moot. The court granted the
defendants’ summary judgment motion because the defendants’ calls were “health care
messages” under the TCPA and because the plaintiff provided prior express consent to
receiving those calls. The court also denied the plaintiff’s summary judgment motion.
Although relegated to a footnote, the court discussed the one-way intervention rule
insofar as the plaintiff asked for a ruling on her class certification motion before deciding
summary judgment. The court discussed that one-way intervention occurs where a
plaintiff “wait[s] on the sidelines to see how the lawsuit turns out and, if a judgment for
the class is entered, intervene[es] to take advantage of the judgment” and noted that the
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Duane Morris Class Action Review – 2023
