Class Certification Denied in TCPA Fax Class Action Due to Dishonesty

June 14, 2017

tcpa-faxOn June 2, 2017, the United States District Court for the Northern District of Illinois denied class certification in a Telephone Consumer Protection Act (“TCPA”) putative class action.  In doing so, the district judge chided the “professional class action plaintiff” due to its demonstrable dishonesty in responding to discovery demands.  In addition, with respect to the class plaintiff’s TCPA fax attorneys, the court further noted that “it is disconcerting that two of the Firms in this case have been singled out by courts for their behavior.”

Why Was Class Certification Denied in this TCPA Fax Case?

In its decision to deny class certification in the TCPA fax case, the court pointed to numerous factual instances where the class plaintiff’s principals submitted false statements in responding to discovery and made false statements during deposition testimony.  For example, the plaintiff claimed in discovery that it was not a customer of the defendant – this statement was false.  Plaintiff’s principal also falsely stated that the plaintiff did not sell a particular product, which it did.  When questioned on this, the plaintiff’s principals blamed their attorneys, claiming that “the false answers were fashioned by lawyers.”  Two other principals designated as Rule 30(b)(6) witnesses claimed that the plaintiff’s attorneys answered discovery and never consulted with the plaintiffs.  In addition, the Court noted that it was unclear as to whether or not the plaintiff’s attorneys ever communicated a settlement and offer of judgment to the class plaintiff.  The attorneys claimed that they did submit the offer to the plaintiff, although they did not provide any documentary evidence of this fact to the Court.  The plaintiff claimed to have never received the offer.  The Court concluded that “the fact that counsel, both corporate and class, has had to repeatedly contradict the testimony of their client serves to underscore the plaintiff’s inadequacies as a representative.”

Protect Yourself: Consult with a TCPA Fax Attorney Today

This blog has previously reported on a class certification denial in a TCPA fax case due to individualized determinations of consent.  In this case, however, the conduct of the named class representative and its counsel were sufficient grounds for denying certification.  Notwithstanding issues of class certification, if your company is facing TCPA fax litigation, it is important to retain competent counsel who will explore all avenues of defense in an effort to successfully represent your company.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website.  If you have been served with process concerning your telemarketing practices, please e-mail us at or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Similar blog posts:

DC Circuit Strikes Down TCPA Fax Rule

Fax Marketing and the TCPA

Offer of Judgment Fails to Defeat TCPA Fax Class Action


David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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