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Class Definitions Amended

Deny Vintage Stock’s Motion to Dismiss TCPA Claims, Plaintiffs Urge Court

Defendant Vintage Stock doesn’t deny any of the allegations of plaintiffs Sheila and Dennis Thompson that the home entertainment retailer sent them dozens of text message solicitations to numbers listed on the national and Missouri do not call registries, said the Thompsons’ memorandum Wednesday (docket 4:23-cv-00042) in U.S. District Court for Eastern Missouri in St. Louis in opposition to Vintage Stock’s Feb. 8 motion to dismiss their Telephone Consumer Protection Act claims for lack of standing (see 2302090045).

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The Thompsons also oppose Vintage Stock’s motion to dismiss their class allegations or alternatively to strike their class claims on all counts, said their memorandum. They simultaneously filed a proposed amended complaint Wednesday, adding six points of specificity defining the broad scope of the proposed class they seek to represent.

They did so because Vintage Stock “is correct” that the class definitions in the original complaint were “fail safe classes,” said their memorandum. Most defendants don’t want plaintiffs “to plead an overinclusive class,” so the Thompsons didn’t plead an overinclusive class in their original complaint, it said. Since Vintage Stock “invites the pleading of an overinclusive class,” the Thompsons will oblige, it said. Hence, the amended complaint, it said.

Courts have defined fail-safe classes as those that preclude membership unless a putative member would prevail on the merits, said the memorandum. Fail-safe classes are prohibited because they would allow putative class members to seek a remedy but not be bound by an adverse judgment, it said.

Vintage Stock’s motion to dismiss based on class definitions “is not proper,” because such a motion is appropriate only if it’s “facially apparent from the pleadings that there is no ascertainable class,” said the memorandum, citing the 5th Circuit’s 2007 decision in John v. National Security Fire and Casualty. In the Thompsons’ case, it’s not facially apparent from the pleadings that there's no ascertainable class, it said.

The proposed amended complaint, attached to the memorandum as an exhibit, now includes “objective, non ‘fail safe class’ definitions,” said the Thompsons. Because of those changes, the court should deny Vintage Stock’s motions to dismiss or strike and allow the amended complaint to be filed, they said.

Vintage Stock “misreads the legal requirements” of the FCC’s DNC regulations, said the memorandum. The proposed amended complaint makes clear, “in no uncertain terms,” that the Thompsons and the class are complaining about the marketing texts that Vintage Stick was “forbidden” to send to numbers on the federal and state DNC lists, it said.

The Thompsons aren’t asserting that “disobedience to the requirements” is what injured them, said the memorandum. They’re claiming the defendant’s failure to obey the FCC’s DNC requirements meant the retailer couldn’t lawfully send telemarketing texts to the Thompsons and to the class, and it was those “illegal texts” that injured them, it said. The court should deny Vintage Stock’s motion to dismiss the Thompsons’ TCPA claims, it said.