No Answers: Court Certifies TCPA Class After Defendant Defaults—Directs Discovery on Class Identity and Damages
Have you ever wondered what would happen if you just didn’t respond to that TCPA class action complaint? One Florida company just found out. (Spoiler alert: bad stuff happens.)
In Jackson v. Paycron Inc., 2019 U.S. Dist. LEXIS 80325, Case No. 8:19-CV-00609-WFJ-AAS, 2019 U.S. Dist. LEXIS 80325 (M.D. Fl. May 13, 2019) the Defendant was duly served with a putative TCPA class action filed by prolific TCPA attorney Avi Kaufman. The Defendant—for reasons that escape mention or relevance in the opinion—failed to answer or otherwise respond to the complaint in timely fashion. After obtaining default against the Defendant the Plaintiff moved quickly to certify the case. In granting the motion the Court looked solely at the well pleaded allegations of the complaint—accepting the allegations as true for purposes of certification. Thus, for example, the Court accepted as true the complaints routine (boilerplate?) allegations of commonality, numerosity, etc. In light of those allegations—which became findings—the court determined the Rue 23(b)(3) factors were met and conditionally certified the case.
The fun didn’t end there, however. The Court also directed the Plaintiff to obtain discovery sufficient to (1) identify members of the Class for purposes of effectuating class notice and (2) determine Classwide and per Class member damages prior to the entry of final judgment.
So there you have it. Failing to respond to a TCPA class action complaint will lead to—perhaps not surprisingly—a TCPA classwide judgment. And the vehicle to get there is a conditional certification order plus court directed discovery. So Defendants cannot hope to, for instance, avoid the pain and expense of class data production by merely allowing a complaint to go unanswered—the plaintiff can still demand the data and will even get the court to assist. Notably the default against Defendant was just entered mid last month—which means Kaufman’s shop moved quickly to see certification and the court moved quickly to grant it. Then again, since only the allegations of the complaint were reviewed in connection with the certification request this was really a monumental feat.