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TCPA DNC class actions should literally never be certified, at least according to the analysis by one court in Kansas.
In Schmitendorf v. Juicy’s Vapor Lounge, 2025 WL 2966205 (D. Ks Oct. 21, 2025) the court found individualized issues surrounding the residential usage of a phone was sufficient to defeat certification–despite vast commonality elsewhere.
In analyzing the Rule 23 requirements the court found numerous common issues existed– such as whether class members received marketing calls from defendant and whether those calls were made without consent.
But the issue of residential usage of the phone–a critical component of a DNC claim–could not be proven on common evidence in the court’s view. This is true despite the fact the Defendant was targeting consumers and not businesses with its message.
In the court’s view, all commonality aside this SINGLE ISSUE predominanted in the case because at trial the defendant had the right to put EVERY CLASS MEMEBER on the stand to examine their cell phone usgae:
Weighing the issues requires considering “how a trial on the merits would be conducted if a class were certified.” Wallace, 725 F.3d 1213 at 1220 (quoting Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 326– 29 (5th Cir. 2008)). At trial, Juicy’s will be entitled to argue that Schmitendorf was not a residential telephone subscriber, which would doom Schmitendorf’s (and only Schmitendorf’s) TCPA claim. See Am-chem Prods., Inc., 521 U.S. at 624–25 (noting that individualized ques-tions on liability and defenses of liability may preclude class certifica-tion). And if Schmitendorf’s class is certified, Juicy’s will have the opportunity to do this for every class member’s phone use. Wallace, 725 F.3d at 1219–20 (noting that a defendant’s non-frivolous defenses to liability that are unique to individual class members may submerge common questions); Dukes, 564 U.S. at 366 (“Wal-Mart is entitled to individualized determinations of each employee’s eligibility for back-pay.”).
Schmitendorf’s proposed class could collectively prove every other element of a TCPA claim but still be no closer to establishing Juicy’s liability absent common proof that the class members were residential telephone subscribers. See Hirsch, 337 F.R.D. at 131 (noting that no “single source answers this question for each phone number” and that each class member’s cell-phone use “must be tested individually”). The fact that Juicy’s contests the residential nature of the class members’ phone lines and the fact-specific nature of the inquiry suggest that this will become a central issue at trial.
Incredible!
In my view the court got his one absolutely right.
It should be noted residential usage of a phone is an affirmative showing the plaintiff must make to sustain a claim, but the logic works equally well with defenses.
Any time an individualized defense exists to a TCPA claim–and it almost always will– the Defendant has the right to call every class member to testify on the issue. Yes the defense has the burden of proof on a defense but that burden can be met through individualized testimony–and that defeats certification.
Notice also that since residential usage is always at issue in a DNC class action the court’s reasoning here effectively ends those suits– assuming the reasoning here catches on.
We will definitely keep an eye on all this.
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