A business sued in a TCPA class action can usually keep doing business with the customers who fall inside the proposed class. Federal courts limit those contacts only on a specific record, under the Supreme Court’s decision in Gulf Oil Co. v. Bernard. What gets a defendant into trouble is communication aimed at the case itself. A new arbitration clause, a release, or an individual settlement offer sent to putative class members without mentioning the lawsuit is the pattern courts have restricted.
Can a business keep contacting customers after a TCPA class action is filed?
In most cases, yes. A complaint that proposes a class doesn’t freeze the defendant’s customer relationships, and no rule bars ordinary contact with people who might later become class members.
The leading case is Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). A district court there had barred the parties and their lawyers from communicating with potential class members without court approval, and the Supreme Court held that the order, entered without findings to support it, was an abuse of discretion. It explained that an order limiting these communications “should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.”
The Court also rejected blanket bans. “But the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules,” the Gulf Oil opinion states. Where a restriction is warranted, the Court said, the analysis “should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances.”
For a company that calls or texts customers, that means billing notices and service messages can continue, along with ordinary marketing that follows the consent and opt-out practices the company had in place before anyone sued. The lawsuit raises the stakes on compliance. It doesn’t require silence.
Where does a court’s power over these communications come from?
From Rule 23(d), which lets a federal judge manage the conduct of a class action.
Federal Rule of Civil Procedure 23(d)(1) allows orders that “impose conditions on the representative parties or on intervenors.” The same subsection lets a court require notice to class members of steps in the case, to protect them and to conduct the action fairly. Courts read that authority together with Gulf Oil’s limits, so a judge who sees a real problem can act, but only on a record that shows the problem and only as far as that record requires.
The power runs in both directions. Gulf Oil itself was brought by plaintiffs whose lawyers had been barred from contacting potential class members. A defendant that sees misleading solicitations from plaintiff’s counsel to its customers can ask the court for relief under the same rule, and it faces the same burden of building a specific record.
What did the Ninth Circuit approve in Dominguez v. Better Mortgage?
A restriction on a defendant that tried to shrink the class through new agreements without explaining the case.
Dominguez v. Better Mortgage Corp., 88 F.4th 782 (9th Cir. 2023), was a wage-and-hour case, not a TCPA case, but the Rule 23(d) analysis the panel applied is the same one a federal court in California would apply to a TCPA class.
After the suit was filed, the employer offered its underwriters $5,000 each to sign releases of their state-law claims in the case. It also rolled out a new employment agreement requiring individual arbitration, with no class or collective proceedings. The opinion notes that “The new employment agreement did not mention the pending lawsuit.” Management told employees that signing it “was a condition of continued employment.”
The district court found the communications misleading and coercive. It nullified the new agreements and releases and ordered the employer to communicate with current and former employees about wage-and-hour issues only in writing and with prior approval. On appeal, the Ninth Circuit wrote that “we affirm the restriction, finding it both justified and tailored to the situation created by the employer’s misleading and coercive communications.” The panel held it lacked jurisdiction to review the nullification order. Judge Collins dissented in part on the merits of the restriction.
The panel’s description of the order is useful for any defendant. Under the restriction, the court said, “Better Mortgage remains free to communicate about the lawsuit” and related issues. The limit was on form and review: “But it needs to communicate in writing, and it needs prior court approval,” the panel explained. The company kept its voice, but it lost the ability to say anything about the case to the people in the putative class until a judge had read the words and signed off on them.
Which customer communications create risk during a TCPA class action?
The ones that change class members’ rights in the case or describe the case to them.
| Communication | Why it draws attention | Lower-risk approach |
|---|---|---|
| Routine account, billing, or service messages | Rarely an issue unless they mention the lawsuit | Keep sending them under existing consent and opt-out rules |
| Updated terms adding an arbitration clause or class waiver | A rollout that skips any mention of the suit can lead to a restriction, and in Dominguez the new agreements were voided | Have counsel review the timing and whether the new terms reach pending claims |
| Individual settlement offers or releases to putative class members | Looks like an effort to pick off the class, as in Dominguez | Route any offer through counsel and consider telling recipients about the lawsuit |
| Statements about the lawsuit to customers or front-line staff | Inaccurate or one-sided descriptions are the core of a misleading-communications motion | Use a short, accurate script approved by counsel |
| Contact with the named plaintiff | The plaintiff has a lawyer in the matter | Go through counsel |
The firm’s earlier posts cover two of these rows in more depth: arbitration agreements and class waivers in TCPA cases and individual settlement release terms.
Should a business roll out an arbitration clause after it has been sued?
Not without a plan for the pending case.
Arbitration agreements and class waivers are lawful tools, and many businesses adopt them after a first TCPA suit. The risk in Dominguez came from the combination of facts: a new agreement aimed at the claims in the case, silence about the lawsuit, and pressure to sign. A court that sees that combination can restrict further communications, and as the Dominguez district court did, it can void the agreements that came out of them.
A cleaner path is to decide, with counsel, whether new terms will apply to pending claims at all. If they will, the communication should say so and describe the lawsuit accurately. If they won’t, the terms can carve out the pending case and still protect the business going forward. Either way, the record should show a business reason for the change that doesn’t depend on defeating the class.
What should a business tell employees who talk to customers?
Less than they might expect, and the same thing every time.
Customer service and sales staff are often the first people at a company to hear about a lawsuit, often from a customer who received a letter or notice about the case. An offhand remark that the case is meritless, or that a customer won’t get anything from it, can end up in a declaration attached to a motion. A short, accurate script works better. It can acknowledge that a case is pending, decline to discuss it, and point the customer to the company’s general contact channel or the notice the court eventually approves.
The same caution applies to account notes. Under a litigation hold, the notes staff write about these conversations are likely to be produced. The firm’s post on TCPA class action discovery explains what plaintiffs typically request.
What to gather once a TCPA class action is filed
The firm’s page for TCPA defense attorneys in California describes how these cases develop after a complaint is served. Early steps:
- Preserve call and text logs, dialer and platform data, consent records, and every customer communication sent after the complaint, under a litigation hold.
- Export the opt-out and internal do-not-call logs with dates, and keep them current while the case is pending.
- Pull the National Do Not Call Registry scrub records and the Registry versions used during the proposed class period.
- Collect vendor and platform contracts, call and text scripts, and any planned changes to customer terms or arbitration clauses.
- Talk to a lawyer before sending new terms, releases, or settlement offers to anyone who may fall inside the proposed class.
Questions about communicating with putative class members
Does filing a TCPA class action stop a company from texting its customers?
No. Gulf Oil requires a clear record and specific findings before a court limits communications with potential class members. Ordinary messages sent under the company’s existing consent and opt-out practices can continue. The company should make sure those practices are followed closely, since every message sent during the case may be reviewed by the plaintiff’s lawyers.
Can a court void releases signed by putative class members?
It can. In Dominguez, the district court nullified releases and new arbitration agreements it found were obtained through misleading and coercive communications. The Ninth Circuit held it lacked jurisdiction to review that part of the order on interlocutory appeal, so the nullification stood. A release obtained without disclosing the lawsuit is vulnerable.
Can the defendant ask the court to limit what plaintiff’s counsel tells customers?
Yes, under Rule 23(d), if the record shows the communications are misleading or abusive. Gulf Oil’s standard applies to both sides. The defendant needs specific evidence, such as copies of the solicitations and declarations from customers who received them, not a general concern that contact might cause confusion.
Is a court-approved notice required before talking about the case?
Not usually. Prior approval is a remedy a court imposes after finding a problem, as the district court did in Dominguez. Without such an order, a defendant can describe the case accurately. Many defendants still choose to clear any lawsuit-related message with counsel first, because an inaccurate one can lead to exactly that order.
If your company has been sued in a TCPA class action
If your company faces a TCPA class action, the messages it sends to customers while the case is pending can become evidence or the subject of a motion. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving customer communications made while a class action is pending. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The Supreme Court decision is Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). The rule is Federal Rule of Civil Procedure 23.
The Ninth Circuit decision is Dominguez v. Better Mortgage Corp., 88 F.4th 782 (9th Cir. 2023), No. 22-55731 (Collins, J., concurring in part and dissenting in part).
This post is general information about the Telephone Consumer Protection Act and related laws as of October 21, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.