By: Jeffrey Backman, Esq. and Jacob Mars, Esq.
In the recent case of Heidarpour v. Secured Marketing Concepts Corporation , the U.S. District Court for the District of Arizona underscored an important principle: a class cannot be certified by default, even under the Telephone Consumer Protection Act (“TCPA”).
The plaintiff, Fred Heidarpour, sought class certification and default judgment after alleging that Pacific One Lending made unsolicited telemarketing calls without prior express written consent, in violation of the TCPA. Pacific One failed to appear, prompting Heidarpour to move for default judgment, seeking to certify a class, and pursue discovery regarding damages.
However, the court denied Heidarpour’s motion, reinforcing that default alone does not satisfy the rigorous analysis required for class certification under Federal Rule of Civil Procedure 23. As the court explained, the plaintiff must prove — not merely plead — that the class meets Rule 23’s prerequisites, including commonality, typicality, and adequacy of representation. “The court cannot conduct a ‘rigorous analysis’ to ensure all of Rule 23’s requirements are met when it can look only to the allegations of the complaint.” Evidence beyond mere allegations is required. Furthermore, for Rule 23(b)(3) classes, proper notice must be given to potential class members before judgment, a step made impossible without identifying who those members are.
This decision aligns with other courts that have concluded certification-by-default is inappropriate. Notably, the court cited Sapan v. Veritas Funding, LLC , where the U.S. District Court for the Central District of California ruled that default “does not mean that mere allegations in a complaint are sufficient to establish Rule 23’s class certification requirements,” and Pagano v. HN & Sons LLC , where the U.S. District Court for the Eastern District of New York stated that “the general principle that factual allegations in the complaint are deemed admitted by the defendant upon default does not apply because Rule 23 imposes an independent duty on the district court to determine by order that the requirements of Rule 23(a) are met regardless of the defendant’s admissions.” Both cases held that a defendant’s failure to appear does not waive the court’s obligation to conduct a “rigorous analysis” of Rule 23 requirements.
In addition, the court denied Heidarpour’s request for expedited discovery from Pacific One and other third-parties, reasoning that Pacific One’s non-participation and the third-parties’ lack of information regarding how the calls were made rendered such discovery futile. As the court noted, outbound call records alone wouldn’t establish that calls were made using an “artificial or prerecorded voice,” a necessary element under the TCPA. Instead, evidence regarding how the calls were made would be required, but such evidence would only be in Pacific One’s possession, and, as noted above, they were not participating in discovery.
The takeaway from Heidarpour is clear: defaulting defendants do not eliminate the need for plaintiffs to meet the burden of class certification. This safeguard prevents the potential for abuse in class actions and ensures that the rights of absent class members are protected, even when the defendant is unresponsive.
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