Heidarpour v. Secured Marketing Concepts Corporation
2:24-cv-00239
D. Ariz.Mar 11, 2025Background
- Plaintiff Fred Heidarpour filed a putative class action against Secured Marketing Concepts Corp., alleging violations of the Telephone Consumer Protection Act (TCPA).
- The complaint claimed the defendant made unsolicited telemarketing calls without recipients' prior express written consent and sought to represent all similarly situated individuals nationwide.
- The defendant failed to appear after being served, leading Heidarpour to move for default judgment and class certification simultaneously.
- Heidarpour proposed immediate class certification, default judgment for the entire class, and expedited discovery to establish damages.
- The court evaluated whether class certification is proper in a default judgment context, requiring evidence beyond mere allegations.
- The plaintiff lacked information regarding class members’ identities, raising notice and ascertainability concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification after default | Default admits allegations, so complaint suffices for class certification | No opposition (default) | Allegations alone are insufficient; rigorous analysis and evidence are required for Rule 23 compliance |
| Class action notice requirements | Not specifically addressed | No opposition (default) | Notice to class is impossible without identifying members; thus, Rule 23(b)(3) class cannot be certified |
| Simultaneous certification and judgment | Court should certify class and enter judgment at once | No opposition (default) | Judgment must follow notice; class certification and immediate judgment are impermissible |
| Expedited discovery post-default | Requests discovery to identify class size and damages | No opposition (default) | Futile, as defendant is unlikely to respond; subpoenaing third parties won’t yield sufficient evidence |
Key Cases Cited
- Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022) (explains Rule 23 class certification requirements and burden of proof)
- Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (plaintiff must prove class prerequisites, not just plead them)
- Schwarzschild v. Tse, 69 F.3d 293 (9th Cir. 1995) (class action notice must precede judgment)
- Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (due process requires opt-out opportunity for class members before judgment)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (absence of express consent is not plaintiff’s burden in TCPA cases)