“An order that grants or denies class certification may be altered or amended before final judgment.” That one sentence in Federal Rule of Civil Procedure 23(c)(1)(C) is why a certification loss in a TCPA case isn’t final. A defendant can ask the court to decertify the class, shrink its definition, or carve out members, as long as it brings new evidence rather than a rerun of the first argument. In TCPA cases, the consent records produced after certification are usually where that new evidence comes from.
Can a court take back a class certification order?
Yes. Certification is provisional until final judgment.
The Supreme Court said so decades before the current rule’s wording. In General Telephone Co. of Southwest v. Falcon (1982), the Court wrote that “Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.” Rule 23 now builds that power into the text of subsection (c)(1)(C).
The power runs both ways. A court can decertify outright, it can redefine the class, or it can divide the class into groups. Rule 23(c)(5) provides that “When appropriate, a class may be divided into subclasses that are each treated as a class under this rule,” according to the rule’s text. For a TCPA defendant, a narrower class is often the realistic win.
The phrase that matters most in Falcon is “subsequent developments.” A decertification motion that repeats the opposition to certification, with the same record, asks the judge to admit a mistake. One that shows what the case looks like after merits discovery asks the judge to apply Rule 23 to new facts. The second kind has a far better chance.
Why do appellate courts point defendants back to the district court?
Because an interlocutory appeal is discretionary, and the trial court can still fix its own order.
The Sixth Circuit’s order in In re Humana, Inc., No. 25-0502 (6th Cir. Dec. 30, 2025), shows how this plays out. The defendant petitioned for permission to appeal the certification of a class alleging prerecorded calls under the TCPA. The court denied the petition, and the case’s posture was one of its reasons. The order states that “The district court stated multiple times that it might reconsider class certification.”
The order also notes that, in certifying the class, the district court acknowledged that if individualized inquiries into consent later “threaten[ed] to swamp common questions,” or other grounds for decertification arose, it would address those issues then, according to the Sixth Circuit’s order. The panel added that “Humana does raise valid concerns that individual issues regarding consent may ultimately overwhelm the common issues.”
The practical lesson for defendants is that a denied appeal under Rule 23(f) usually leaves the certification fight in the trial court. The firm’s earlier post on Rule 23(f) appeals of TCPA class certification covers the appeal side. This post covers what comes after.
What new evidence supports decertifying a TCPA class?
Evidence that the class’s common answer has broken down on a large scale.
Consent is the usual battleground. In Humana, the Sixth Circuit described an earlier Sixth Circuit holding that “affirmative consent is a defense in TCPA cases that can be raised after certification,” and it quoted that decision’s statement that courts have “adequate procedural mechanisms” when a defense turns out to bar some members’ claims. Those mechanisms, the order explains, include placing affected members “in a separate subclass, or exclude them from the class altogether.”
Volume is what wins. The Humana defendant had offered declarations from thirteen people with “wrong number” notes who said they had in fact consented. The panel was unmoved. It noted that the thirteen represented “0.05% of the potential class members” and held, in the order’s words, that the number “does not raise predominance concerns.” A decertification motion needs consent evidence that touches a meaningful share of the class, or a showing that consent can’t be sorted out without member-by-member hearings.
Identification problems are the second common ground. Plaintiffs often rely on an expert’s process for turning call records into a list of class members. If that process, once run, misidentifies customers or can’t separate subscribers from users, the class may no longer be ascertainable or manageable. The firm’s post on Rule 702 challenges to TCPA data experts covers that attack.
A definition that turns out to depend on consent is a third. A class defined only as people who didn’t consent can’t be identified without deciding the merits. Humana discusses this “fail-safe” problem and distinguishes a definition that excludes account holders and people who consented on their behalf.
The named plaintiff can also become the problem. If the representative’s own consent or standing is undercut in discovery, typicality and adequacy come back into play.
What doesn’t work on a decertification motion?
Blaming your own records.
Defendants sometimes argue that their call notes can’t be trusted to show who consented or who was a wrong number. Courts don’t reward that. The Sixth Circuit said in Humana that “Humana’s argument that its own record-keeping is deficient or misleading is unavailing,” and it quoted a district court’s warning that denying certification on that basis “would create the perverse incentive for entities to keep poor records.”
That’s an uncomfortable rule for a business with messy data, and it’s a fair one. The better approach is to prove what the records do show, with declarations and sampling backed by a consent expert, rather than to argue they show nothing.
Re-arguing predominance in the abstract doesn’t work either. The panel in Humana stressed that predominance “requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class,” quoting the Supreme Court, according to the order. A decertification brief has to show individual questions actually overwhelming the common ones, with record cites.
Grounds for decertifying or narrowing a TCPA class
| Ground | Rule | What the record needs to show | Common weak spot |
|---|---|---|---|
| Individual consent questions now predominate | Rule 23(b)(3) | Consent evidence covering a substantial share of members, or proof that consent can only be decided person by person | Too few declarations, as in Humana’s 0.05% |
| Class can’t be identified or managed | Rule 23(b)(3); circuit ascertainability law | The plaintiff’s identification method, as actually run, produces unreliable results | Attacking the method in theory instead of its output |
| Class definition depends on the merits | Rule 23(c)(1)(B) | Membership can’t be determined without deciding consent | Definitions that exclude customers or account holders may survive |
| Named plaintiff no longer fits | Rule 23(a)(3), (a)(4) | The representative’s own claim faces a unique consent or standing defense | Plaintiffs may try to add or swap representatives |
| Part of the class is barred | Rule 23(c)(1)(C), (c)(5) | A defined group (customers, consenting users, a time period) has a defense the rest don’t | Courts may prefer a subclass over full decertification |
How should a defendant build toward a decertification motion?
Starting on the day the class is certified, not the week before trial.
Certification opens merits discovery and, often, class notice. Both produce evidence. The defense team should map which consent sources cover which members, run the plaintiff’s identification method against the defendant’s own customer data, and track every class member who contacts the company or opts out after notice. The firm’s post on defending TCPA class certification on consent covers the evidence that matters at the first stage, and nearly all of it gets reused here. The firm’s page on defending TCPA class actions in California describes how these cases move from certification through trial or settlement.
These steps keep the option open:
- Keep the litigation hold in place over dialer logs, texting platform exports, consent capture records, and call notes, including data sets that weren’t produced before certification.
- Pull opt-out and internal do-not-call records for every class member, with dates, so revocation and consent issues can be measured across the class.
- Gather the National Do Not Call Registry scrub records and the version dates for any period the class covers.
- Collect the vendor and lead-source contracts and the call scripts. Add any prerecorded or AI-voice files, because vendor-held consent often decides whether a subgroup can be carved out.
- Have counsel decide the timing of any motion, and of any settlement talks, before anyone contacts class members or the representative.
Questions about TCPA class decertification
When can a defendant file a motion to decertify a TCPA class?
Any time before final judgment. Rule 23(c)(1)(C) says a certification order “may be altered or amended before final judgment.” In practice, the motion is strongest after merits discovery or class notice has produced evidence the court didn’t have when it certified. Many scheduling orders set their own deadline for it.
Is a decertification motion just a motion for reconsideration?
It shouldn’t be. Courts can modify certification “in the light of subsequent developments in the litigation,” in the words of the Supreme Court’s Falcon decision. A motion built on the same record and the same argument looks like reconsideration and usually fails. A motion built on new evidence about consent, identification, or the named plaintiff asks a different question.
Can a court narrow a TCPA class instead of decertifying it?
Yes. Rule 23(c)(5) allows subclasses, and the Sixth Circuit’s Humana order noted that a court can place members with potentially barred claims in a separate subclass or exclude them. Courts often prefer that middle path. A defendant should be ready to propose a narrower definition as an alternative.
Does losing a Rule 23(f) petition affect a later decertification motion?
Not directly. Denying permission to appeal isn’t a ruling that certification was correct. In Humana, the Sixth Circuit’s denial relied partly on the district court’s statements that it might reconsider certification. A denied petition often leaves decertification as the defendant’s main path for revisiting the class.
If a class has been certified against your company
If a court has granted class certification in a TCPA case against your company, the consent evidence developed after certification often decides whether the class survives to trial. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded calls and wrong-number dialing. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The rule is Federal Rule of Civil Procedure 23. The Supreme Court’s decision is General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982).
The Sixth Circuit’s order is In re Humana, Inc., No. 25-0502 (6th Cir. Dec. 30, 2025), recommended for publication.
This post is general information about the Telephone Consumer Protection Act and related laws as of October 27, 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.