TCPA Class Representative Ordered to Produce Evidence Regarding Past Lawsuits—Even Confidential Settlements Potentially Relevant to Standing to Represent Class

A common battle in TCPA suits is discovery regarding Plaintiff’s past litigation conduct. On the one hand the Plaintiff will argue that prior suits have nothing to do with the merits of the current dispute. On the other hand Defendants argue that the case may be a sham, or manufactured, and the Plaintiff may lack standing to assert the claim based upon their past history of interaction with the statute. In extreme cases, a Defendant may even argue that the Plaintiff’s conduct of accepting messages without opting out amounts to fraud.

In class suits these concerns become even more compelling for Defendants and the Court alike. After all, a Plaintiff must be “adequate” to represent a class, meaning that there is nothing particular about that Plaintiff’s claims that may distract him from his duties of taking care of the class as a whole, as a recent discovery ruling from the Southern District of California demonstrates.

In Moser v. Health Ins. Innovations, Inc., No. 3:17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 6365 (S.D. Cal. April 11, 2019), the district court approved of a Magistrate Judge’s order compelling Plaintiff—a putative TCPA class representative— to provide discovery regarding past lawsuits—including production of confidential settlement agreements, with some limited protections.  

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