One Word, No Class: “Residential” Definition Sinks TCPA Case

In Schmitendorf v. Juicy’s Vapor Lounge, Inc., 2025 U.S. Dist. LEXIS 208110 (D. Kan. Oct. 21, 2025), the court reminded everyone involved in Telephone Consumer Protection Act (TCPA) class actions that sometimes a single word—“residential”—can determine the fate of the entire case.

The plaintiff claimed Juicy’s sent him and thousands of others promotional text messages in violation of the TCPA’s internal “do-not-call” rules. But the court denied class certification, holding that whether each recipient was a “residential telephone subscriber” could not be decided with common proof.

The problem was simple but fatal. People use their cell phones differently. Some use them exclusively for personal communication, others for work, and many for both. The plaintiff used his cell phone to text co-workers and his boss, making it impossible to say on a classwide basis that everyone’s phone qualified as “residential.” That individualized inquiry defeated predominance under Rule 23(b)(3) and ended the case before it could gain traction.

This ruling adds to a growing body of TCPA decisions recognizing that cell phones blur the line between residential and business use. Many consumers rely on a single device for everything from scheduling work shifts to texting family, which makes class certification especially difficult in “do-not-call” cases.

For defendants, the takeaway is significant. When plaintiffs rely on cell phones instead of landlines, the question of “residential subscriber” becomes a critical defense theme. Demonstrating that usage varies across recipients can defeat predominance and prevent certification.

The judge’s opinion also reads like a checklist for depositions. Defense counsel should probe early:

• How do you use your cell phone day to day?

• Do you call or text your supervisor, clients, or business contacts on it?

• Does your employer pay or reimburse part of your phone bill?

• Is your number advertised or shared publicly for business purposes?

For defendants, these questions help build the record showing individualized issues. For plaintiffs, failing to develop consistent evidence on “residential use” can doom class certification.

Without class certification, TCPA claims lose nearly all their value. Statutory damages for one or two texts rarely justify federal litigation. Schmitendorf reminds us that the phrase “residential telephone subscriber” can be outcome-determinative, and that understanding how each consumer actually uses their phone can make or break a class case.