In Dixon v. Monterey Financial Services, Inc., 2016 WL 3456680, at *4-5 (N.D.Cal., 2016), Judge Chesney denied a TCPA defendant’s summary judgment motion on the basis that triable issues of fact existed whether the Plaintiff revoked consent.
Initially, the Court finds unpersuasive defendant’s argument that the statements, which were recorded by defendant at the time they were made, are insufficient to create a triable issue of fact in the absence of plaintiff’s submission of a declaration in which she states ‘she intended to revoke consent‘ when she made the statements. (See Def.’s Mem. of P. & A., filed June 3, 2016, at 2:21-23.) Defendant has failed to cite any authority suggesting that the subjective intent of the plaintiff is relevant to whether consent has been revoked. Rather, as the Eleventh Circuit has explained, ‘consent is terminated when the [person who obtained consent] knows or has reason to know that the other is no longer willing for him to continue the particular conduct. ‘ See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1253 (11th Cir. 2014) (internal quotation and citation omitted). Indeed, authority offered by defendant, albeit for other purposes, has rejected the very argument made by defendant here, and by the plaintiff there, that a plaintiff’s subjective intent to revoke is relevant to show revocation, and, instead, considered only the words used by the plaintiff at the time of the events in question. See Welch v. Green Tree Servicing LLC (In re Runyan), 530 B.R. 801, 807 (Bankr. M.D. Fla. 2015). The Court thus turns to the words used by plaintiff during the subject phone calls. First, plaintiff contends a trier of fact could reasonably find consent was revoked on May 7, 2015, when plaintiff stated, ‘I have, um, an attorney Todd Friedman, who helps me with, um, consumer mistreatment the way I’m being treated,‘ and ‘[w]hat I’m going to do is contact Todd Friedman and have him contact you guys.‘ (See Friedman Decl. Ex. A.) The Court disagrees. Although the referenced comments indicate plaintiff either had or intended to retain counsel to respond to defendant’s inquiries regarding plaintiff’s debt, plaintiff did not use any language that would cause defendant to know, or have reason to know, she was revoking her prior express consent to be called. Indeed, as one court, when considering a similar statement made by a plaintiff, explained, ‘[t]elling [the defendant] that it could do something hardly indicates that it cannot do something else.‘ See Welch, 530 B.R. at 807 (emphasis in original). Second, plaintiff contends a trier of fact could reasonably find consent was revoked on May 19, 2015, when plaintiff stated, ‘I asked you guys not to call me and you can contact my attorney.‘ (See Friedman Decl. Ex. B.) The Court agrees.4 Indeed, the subject statement is substantially similar to that made by plaintiff on May 22, 2015, which statement, as noted, defendant acknowledges constituted a revocation, specifically, ‘I am asking you to not call me anymore and contact Mr. Friedman.‘ (See Little Decl., filed June 3, 2016, Ex. A.) Even if plaintiff was incorrect as to how her earlier statement would be understood, a trier of fact could reasonably find that her statement on May 19, 2015, constituted an expression of her current desire not to further receive such calls.
The Court, however, struck the class as an impermissible fail-safe class.
In the FAC, plaintiff alleges she seeks to proceed on behalf of the following class: “All persons within the United States who received any collection telephone calls from [d]efendant to said person’s cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had not previously consented to receiving such calls within the four years prior to the filing of this Complaint.(See FAC ¶ 13.)” Defendant argues the above-quoted language should be stricken from the FAC, on the ground the class, as proposed, is a fail-safe class.5 As the Ninth Circuit has explained, ‘[t]he fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established. ‘ See Kamar v. RadioShack Corp., 375 Fed. Appx. 734, 736 (9th Cir. 2010) (observing that where class is fail-safe, ‘once it is determined that a person, who is a possible class member, cannot prevail against the defendant, that member drops out of the class‘). Certification of a fail-safe class would not only be ‘palpably unfair to the defendant,‘ it would be ‘unmanageable – for example, to whom should the class notice be sent?‘ See id.Here, although plaintiff offers a conclusory assertion that the proposed class is not fail-safe, plaintiff cites no authority in support of her position, and, indeed, the case she cites, albeit for another proposition, expressly found that a putative class essentially indistinguishable from the class defined here by plaintiff was an improper ‘fail-safe‘ class, for the reason that ‘defining [a TCPA] class to include anyone who received…a call without prior express consent means that only those potential members who would prevail on this liability issue would be members of the class.‘ See Olney v. Job.com, Inc., 2013 WL 5476813, at *11 (E.D. Cal. September 30, 2013). As plaintiff’s proposed class suffers from the same defect, it likewise is a fail-safe class, and, as such, is improper. Plaintiff next argues that, should the Court find the proposed class is fail-safe, the Court should take no action at this time, and, instead, address the issue in the context of a motion for class certification plaintiff intends to file in the future. The cases cited by plaintiff in support of such approach, however, are distinguishable, as they involve situations where the class definition was not challenged as fail-safe until the defendant opposed a motion for class certification, see, e.g., In re Autozone, Inc., Wage and Hour Employment Practices Litig., 289 F.R.D. 526, 545-46 (N.D. Cal. 2012), or where, before the district court ruled on a motion challenging the proposed class definition as fail-safe, the plaintiff filed a motion for class certification in which the plaintiff revised the class definition such that the proposed class no longer was fail-safe, see, e.g., Olney, 2013 WL 5476813, at *11. Here, by contrast, plaintiff has not filed a motion for class certification, nor has plaintiff identified a proposed non-fail-safe class on which she intends to base a motion for class certification.Accordingly, the class action allegations will be stricken from the FAC. The Court will afford plaintiff leave to amend to allege, if she can, a proposed class that is not fail-safe.