The class representative usually pays, not the defendant. Under Supreme Court decisions from the 1970s, the class representative pays to find and notify class members, even when the defendant holds the call records. That changes once a court finds the defendant liable. Two federal appeals courts have let judges move the notice bill to the defendant after a merits loss, and in one TCPA robocall case the estimate topped $600,000. For a business defending a class case, the order of rulings can decide who pays.
Who pays to notify the class once a TCPA case is certified?
The class representative pays, at least at the start.
Most TCPA damages classes are certified under Rule 23(b)(3), and those classes need notice before they can go forward. Under Federal Rule of Civil Procedure 23(c)(2)(B), “the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” The rule says how notice must work. It doesn’t say who pays for it.
The Supreme Court answered that in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). The trial court there had held a preliminary hearing on the merits and then ordered the defendants to pay most of the notice cost. The Supreme Court reversed. It warned that tentative merits findings could “place an unfair burden on the defendant,” and it stated the rule plainly: “The usual rule is that a plaintiff must initially bear the cost of notice to the class.”
Four years later, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), repeated the point. The Court wrote that “the representative plaintiff should bear all costs relating to the sending of notice because it is he who seeks to maintain the suit as a class action.”
Can a court make the defendant help identify class members?
Yes, but the cost of that help usually stays with the plaintiff.
Oppenheimer separated the task from the bill. “In some instances, however, the defendant may be able to perform a necessary task with less difficulty or expense than could the representative plaintiff,” the Court said. A judge can order the defendant to pull names from its own records. Paying for it is a different question, and the Oppenheimer Court said “the test should be whether the expense is substantial.”
There’s one exception that matters for businesses with good data. The Oppenheimer opinion said it may be fair “to leave the cost where it falls because the task ordered is one that the defendant must perform in any event in the ordinary course of its business.” In Oppenheimer itself, the Court found the trial judge had abused its discretion by making the defendant pay to compile class members’ names and addresses.
TCPA cases add a twist that most other class actions don’t have. The class list is usually a list of phone numbers from a dialer or texting platform, not names and mailing addresses. Turning those numbers into people who can receive notice takes reverse lookups and outside vendors. In the Bakov robocall case discussed below, the Seventh Circuit noted that the plaintiffs “used two third-party service providers to identify and send notice to the 28,239 Illinois class members.” That’s work the plaintiff should fund, because no business runs reverse lookups on its call logs in the ordinary course.
When can the notice bill move to the defendant?
Once the court finds the defendant liable and notice hasn’t gone out yet.
The Ninth Circuit set the rule for California federal courts in Hunt v. Imperial Merchant Services, Inc., 560 F.3d 1137 (9th Cir. 2009), a debt collection class action. The district court granted partial summary judgment for the class and then ordered the defendant to pay for notice. The Ninth Circuit affirmed and held “that a district court has the discretion to require a class action defendant to pay the costs of class notification when the court has already determined that the defendant is liable on the merits.”
The Seventh Circuit applied the same idea to a TCPA case in Bakov v. Consolidated World Travel, Inc., 68 F.4th 1053 (7th Cir. 2023). The class sued over prerecorded calls offering a free cruise. The district court certified an Illinois-only class, which the plaintiffs notified at their own expense, and then granted summary judgment to the class and found the violations willful. After a change in Seventh Circuit law, the court expanded the class nationwide. Notice to the new members was estimated at $602,838, and the court ordered the defendant to pay it.
The Seventh Circuit affirmed on May 19, 2023. “We conclude that in the unusual circumstances of this case, the district court had the authority to assign these costs to CWT and that it did not abuse its discretion in doing so,” the court wrote. The opinion agreed with other courts that “the district court may elect to shift the cost of class notice (with or without a security bond) to the defendant” once the plaintiff has won on the merits.
How do courts handle notice costs at each stage?
| Stage of the case | Who usually pays for notice | Authority |
|---|---|---|
| Class certified, no liability ruling yet | The class representative | Eisen (1974); Oppenheimer (1978) |
| Defendant can do a notice task more cheaply | Defendant does the task, but a large cost stays with the plaintiff | Oppenheimer |
| Task the defendant performs in the ordinary course of business | Cost may stay with the defendant | Oppenheimer |
| Liability found before notice goes out | Court may shift the cost to the defendant | Hunt (9th Cir. 2009); Bakov (7th Cir. 2023) |
Can a defendant appeal a notice-cost order right away?
Yes. Both appellate courts treated the order as immediately appealable.
The Hunt court said “We have jurisdiction to review the notice cost order under the collateral order doctrine of 28 U.S.C. § 1291.” The Seventh Circuit agreed in Bakov, relying on the same Supreme Court cases. That means a defendant ordered to pay notice costs doesn’t have to wait for a final judgment to challenge the order.
The appeal doesn’t automatically stop the notice from going out. In Hunt, the defendant got a stay pending appeal, but “IMS was required to post a $9,000 bond representing the costs of notifying the class.” The Seventh Circuit put the burden on the other side of the case, suggesting that a defendant worried about getting its money back from the plaintiffs should ask the trial court for a bond. The defendant in Bakov never did.
What does this mean for a TCPA defense strategy?
It means the order of rulings carries a price, and the defense should plan for it before asking for a merits decision.
In the usual case, class certification and notice come before any ruling on liability, and the plaintiff funds notice. A defendant that pushes for summary judgment before notice goes out is taking a bet. A win can end the case cheaply. A loss can hand the plaintiff a liability ruling and a court with discretion to move the notice bill, which in a nationwide calling or texting class can run well into six figures.
The record matters just as much. Hunt told district courts to weigh the totality of the circumstances, and the Seventh Circuit noted that the defendant in Bakov never raised a hardship argument. A defendant facing a cost-shifting motion should put the actual numbers in front of the court, along with evidence about how hard it is to tie phone numbers to people, and ask for a bond if it’s ordered to pay. Arguments the defendant doesn’t make can’t help it on appeal.
Defense counsel should also watch the form of any data the business produces. Producing call logs as they’re kept is ordinary discovery. Agreeing to run lookups, clean addresses, or send notice through the company’s own texting platform turns a plaintiff’s expense into a defense expense, and Oppenheimer gives the business room to say no.
What should a company do once a TCPA class is certified?
Treat the notice plan as a cost fight, and keep the records that will define the class in order. The firm’s page on defending TCPA class actions in California describes how notice disputes fit into the class phase. The firm’s earlier post on class certification and consent covers the arguments that come before notice.
- Keep the litigation hold on dialer and texting platform logs in place, and add the customer records that could tie numbers to names.
- Preserve opt-out and internal do-not-call records, since they may decide who falls inside or outside the class definition.
- Keep the National Do Not Call Registry scrub records and Registry version dates for each campaign in the class period.
- Collect the vendor contracts and the scripts or message files for each campaign, because they show which vendor’s records hold the class list.
- Talk to a lawyer before you respond to a proposed notice plan or contact anyone in the class, and before any offer goes out.
Questions about class notice costs in TCPA cases
Does a defendant have to turn over its call records for class notice?
Often, yes. A court can order a defendant to produce records or perform a notice task it can do more cheaply than the plaintiff. Under Oppenheimer, though, the plaintiff usually pays for that work when the cost is large. The defendant can ask the court to require reimbursement before it compiles anything beyond what it keeps in the ordinary course.
Can class notice be sent by text message?
Rule 23 allows notice by mail or by electronic means, among other options, so text or email notice is possible in the right case. The court decides what counts as the best notice practicable. A defendant should be cautious about agreeing to send notice from its own messaging platform, because doing so can shift the cost and the operational burden onto the business.
Can a defendant get notice costs back if it wins on appeal?
It can try. The Seventh Circuit said a defendant that later reverses the liability ruling may seek to recover the notice costs, and in Hunt the bond would have gone back to the defendant if it had won. The practical risk is collecting from plaintiffs. That’s why a defendant ordered to pay should ask the trial court for a security bond right away.
Does the plaintiff’s victory on one claim let the court shift all notice costs?
Not automatically. Both appellate courts described the decision as discretionary, and Hunt told courts to look at the totality of the circumstances. A defendant can argue hardship, the size of the cost compared with the case, or the plaintiff’s ability to pay. The Seventh Circuit noted that the defendant in Bakov never raised hardship, which made the order easier to affirm.
Facing a class notice fight in your TCPA case?
If a TCPA class has been certified against your company, the notice plan is one of the first places where the cost of the case can shift. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded telemarketing calls and autodialed texts. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The Supreme Court decisions are Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) and Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978). The appellate decisions are Hunt v. Imperial Merchant Services, Inc., 560 F.3d 1137 (9th Cir. 2009) and Bakov v. Consolidated World Travel, Inc., 68 F.4th 1053 (7th Cir. 2023). The notice rule is Federal Rule of Civil Procedure 23.
This post is general information about the Telephone Consumer Protection Act and related laws as of October 17, 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.