UPDATE: Court Sets Hearing on One-Way Intervention Issue in Certified TCPA Class Action

Bad Reyes is the case that keeps on giving.

After yielding headline-worthy news on the issue of whether predictive dialers are still covered by the TCPA –notably it ruled contrary to last week's huge Pinkus decision and concluded that such dialers remain subject to the statute– it now looks like a substantive ruling on the one-way intervention doctrine is in the works.

As I wrote a couple weeks back, the Court in Reyes entered summary judgment in favor of the Plaintiff on a key substantive issue before it certified the class. That seems like a classic violation of the one-way intervention rule. The Defendant thus requested the Court reconsider certification of the class since a substantive issue had already been decided in favor of the class at the time the certification order came down, a rare–but seemingly appropriate–maneuver.

The Reyes court appears to be giving the issue a hard look. Today the Court entered an order setting oral argument on the one-way intervention issue on August 9, 2018. See here:

The Court also ordered the parties to provide a list of cases in which a plaintiff’s summary judgment motion was granted before a certification order came down.

It will be very interesting to see what happens next. If the Court finds that certification was barred by the one-way intervention rule–which seems to be the case–the only curative options would be to de-certify the class (which is the relief sought by Defendant) or to vacate the summary judgment ruling in favor of the class members (which would have a larger impact on TCPAland, especially in light of the monumental shift imposed by Pinkus.)

We’ll stay tuned. We hope you will too.

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