When a defendant defaults, fails to respond to a motion for class certification, and produces no evidence of consent, one might assume that class certification is a formality. A recent decision from the Eastern District of Pennsylvania is a useful reminder that in telemarketing litigation, even an unopposed motion gets a “rigorous analysis” and a plaintiff who cuts corners can come up short.
In Garcia v. Star Power Marketing Group, LLC, 2026 WL 1830937 (E.D.P.A. Jun. 24, 2026), a consumer sued individually and on behalf of a putative class, alleging that Star Power violated the Telephone Consumer Protection Act (TCPA) by sending text messages to numbers on the National Do Not Call Registry without written consent. The consumer, whose number was allegedly on the Registry, said she received at least five marketing texts soliciting her to attend Star Power events. She also asserted a claim under the Pennsylvania Telemarketer Registration Act (PTRA), alleging Star Power made calls as a telemarketer without registering with the Office of Attorney General.
After initially defaulting, Star Power answered the complaint and asserted that the consumer had “opted in” to receiving Star Power’s promotions prior to June 2024.
As with the complaint, Star Power did not respond initially to the plaintiff’s motion for class certification. Even so, the court reminded the parties that even when unopposed, certification is proper only after the court confirms that the prerequisites in the Federal Rules of Civil Procedure are met. That burden rests squarely on the party seeking certification.
Before even reaching Rule 23, the court flagged that the plaintiff’s supporting declaration was unsigned, and therefore its evidentiary value was “drastically reduced.” Because the motion was denied without prejudice, the plaintiff will get a chance to re-file a signed declaration—and the court pointedly noted “[i]t would behoove her to do so.”
The Numbers Were There—But Consent Was the Problem
The plaintiff cleared the numerosity hurdle. The plaintiff asserted that texting records produced in response to a subpoena identified 2892 telephone numbers that received texts despite being on the National DNC Registry. Because the Third Circuit treats numerosity as typically satisfied when the potential class exceeds 40, that requirement was met.
Adequacy posed no immediate obstacle either. The plaintiff described herself as an “ordinary, well-meaning consumer who is fed up with the text message calls at issue” who was familiar with her role as class representative. The court cautioned, however, that the plaintiff’s unsigned declaration in support of her adequacy carried “little to no weight,” though it saw no issue with her adequacy so long as she re-filed a signed declaration and the defendant did not object. As for counsel, the court found no reason that the plaintiff’s attorney—who had been appointed class counsel in a TCPA class action and served as co-counsel in others that settled—could not adequately represent the class.
The case unraveled on typicality. The plaintiff argued that consent did not defeat typicality because she denied consent was given and Star Power proffered no evidence to the contrary. The court disagreed, finding it could not determine whether the consent defense was typical across the putative class. Star Power repeatedly asserted that the plaintiff had “opted in prior to June of 2024” and denied that a class could exist for people who “voluntarily ‘opt[ed] in’ to a text database with [the] option of removing themselves by texting stop.” The proposed class definition did not limit itself to non-consenting recipients, and the plaintiff offered nothing about whether Star Power even had a consent mechanism.
The same gap doomed predominance. The court was “perplexed” by the plaintiff’s assertion that “Defendant admitted that it possessed no consent,” noting that the claim had no record citation and that Star Power’s Answer pled the opposite. Critically, the court held that a defendant’s mere failure to produce consent evidence is not enough to certify a class. Determining the type of consent each class member did or did not give would require individualized review, and a plaintiff is not entitled to a presumption that all class members failed to consent. If discovery was the problem, the court observed, the plaintiff should have moved to compel rather than relying on a bald assertion.
The PTRA Claim: No Private Right of Action
The court raised an even more fundamental problem with the PTRA class: courts in the Eastern District of Pennsylvania have repeatedly held that the PTRA does not create a private cause of action. The court observed that plaintiff’s counsel should be well acquainted with that principle, having served as a pro se plaintiff in two such cases and as counsel in another where the Eastern District of Pennsylvania held the PTRA does not create a private cause of action. Rather than certify a class under a statute that provides no private remedy and waste judicial resources, the court ordered supplemental briefing on why the PTRA claim should not be dismissed with prejudice. As the court put it, resolving the key factual question of whether Star Power was a registered telemarketer would seemingly not change the outcome when the PTRA confers no private right of action in the first place.
Takeaways for Advertisers
- Consent is the battleground in TCPA class actions. A defendant’s denial of consent—or even silence in discovery—does not relieve the plaintiff of showing that the consent question can be answered on a classwide basis. Maintaining clear records of opt-ins and a documented consent mechanism remains a powerful defense to certification.
- A defendant’s lack of consent evidence does not carry the plaintiff’s burden; without a record showing how consent works, a class definition that excludes consenting recipients, and proof that consent can be resolved with common evidence, courts will treat consent as an individualized question that defeats certification.
- Unopposed does not mean automatic. Defaulting or failing to respond to a certification motion does not hand the plaintiff a certified class; the court still conducts a rigorous, merits-based Rule 23 analysis.
- Procedural basics matter. An unsigned declaration carried little to no weight and nearly sank the plaintiff’s adequacy showing.
- Mind the statute. A claim under a statute with no private right of action—like the PTRA—may not just fail certification; it may be dismissed with prejudice.
The court denied the motion for class certification without prejudice, so this story is not over. But Garcia offers a clear reminder that, in TCPA class litigation, the plaintiff’s evidentiary burden does not disappear simply because the other side goes quiet.