In Haghayeghi v. Guess?, Inc., 2015 WL 1345302 (S.D.Cal. 2015), Judge Houston refused to strike a TCPA class as an impermissible “fail-safe” class at the pleadings stage.

Defendant argues Plaintiff’s class definition must be stricken because it is an improper fail-safe class. Defendant maintains the purported class definition seeks to include only those people who received an unauthorized text message, thus, only those people who could show that Guess? violated the TCPA by sending them an unauthorized text message could prevail and be a member of the class.  Defendant further argues given the scant factual allegations and the ambiguous nature of the claims, it cannot ascertain the boundaries of the putative class, and the broad class definition could not survive certi-fication. Additionally, Defendant argues discovery will be unwieldy.  In opposition, Plaintiff maintains a motion to strike class allegations at this early stage is disfavored. Even if the Court is willing to consider the motion to strike, Plaintiff argues, she has not alleged a fail-safe class. Further, even if the Court finds that Plaintiff has alleged a fail-safe class, she argues, the Ninth Circuit does not preclude fail-safe classes. Plaintiff also contends she should be permitted an opportunity to amend her class definition.   In reply, Defendant argues the class definition is fatally defective as a matter of law and no amount of discovery could help Plaintiff overcome that fact. Defendant argues, as such, there is no reason to wait until the class certification stage to rule on the issue. Defendant further maintains Plaintiff fails to identify a single piece of discovery that she needs or wants to obtain in order to argue her case.  Defendant also argues Plaintiff’s assertion that fail-safe classes are not prohibited is similarly flawed and reads too much into the dicta of an unpublished Northern District of California opinion. Further, Defendant contends Plaintiff’s argument that the proposed class is not a fail-safe class is wrong.  A fail-safe class is defined by the merits of the claim. It includes only those members who are entitled to relief. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir.2012). The class is not ascertainable until a finding of liability in the plaintiff’s favor. See Brazil v. Dell Inc., 585 F.Supp.2d 1158, 1167 (N.D.Cal.2008).  Plaintiff seeks to represent a putative class “consisting of all persons within the United States who received one or more unauthorized text messages sent by or on behalf of Defendant within the four years prior to the filing of th[e] Complaint until Class Certification.” FAC ¶ 23.  The class, as currently defined is suspect as it requires a finding that Defendant sent unauthorized text messages to determine who is a class member. However, the Court finds it more appropriate to address the issue in a motion for class certification. Therefore, the motion to strike is DENIED without prejudice.