The Second Circuit recently reaffirmed the potential benefits of front-loading merits arguments as a strategy to defeat class actions. Kaye v. Merck & Co., 852 F. App’x 569 (2d Cir. 2021), affirmed a district court’s order granting summary judgment for the defendant in an action under the Telephone Consumer Protection Act where the fax advertisement at issue fell within the scope of the consent granted by the plaintiff. When the plaintiff objected to the district court’s decision to strike class allegations, the Second Circuit further explained that, since the named plaintiff had no viable claim, he was not an adequate class representative and could not have obtained class certification.
