For-Profit University Unable to Defeat TCPA Class Action

September 14, 2016

tcpa-class-actionLast week, a ruling that refused to strike class allegations was issued by a judge presiding over a putative class action in the Northern District Court of Illinois concerning alleged violations of the Telephone Consumer Protection Act (“TCPA”).  In the TCPA class action case, a for-profit university, American Intercontinental University, Inc. (“AIU”) is being accused of contacting consumers on their cell phones through use of an autodialer, without previously obtaining prior express written consent to contact such individuals.

What was the Court’s reasoning for keeping the TCPA class action allegations alive?

The judge ultimately ruled that the decision on whether to certify the proposed class was premature and would be best decided at the time that the putative class representative files her motion for class certification.  Nevertheless, the judge did rule that the proposed class definition must be amended because the putative class was found to be an impermissible “fail-safe” class.  A “fail-safe” class is one in which a class member qualifies as such solely based on whether or not a defendant is liable. Here, the proposed class was defined to consist of individuals who did not provide express written consent to be contacted, which itself is a requirement for liability under the TCPA.  Relying on the principle that qualification for membership in a class cannot depend upon the liability of the defendant, the Court ordered an amendment to the proposed class definition.

Protect Your Business From TCPA Class Action Liability

We have written extensively about increased regulatory and judicial interest in autodialing, as well as telemarketing calls placed to cell phones in general. Here, AIU is most likely facing a lengthy and costly class action lawsuit with exposure to a significant judgment.  As such, this TCPA class action case provides further proof of the importance of having proper practices and procedures in place to ensure the appropriate use of autodialing technology.

If you are interested in learning more about this topic or need to review your telemarketing practices and procedures, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for information 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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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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