In Dixon v. Monterey Financial Services, Inc., 2016 WL 4426908, at *1–2 (N.D.Cal., 2016), Judge Chesney struck a TCPA class definition a second time, as the amendment to the class definition still was a fail-safe class.
By order filed June 24, 2016, the Court granted defendant’s motion to strike the class allegations in the First Amended Complaint (“FAC”), finding the class, as defined therein, was a “fail-safe” class, and afforded plaintiff leave to amend to allege a class that is not fail-safe. (See Order, filed June 24, 2016, at 7:1 – 8:20.) Plaintiff subsequently filed her SAC and amended the definition of the putative class. By the instant motion, defendant argues the class as defined in the SAC is, again, fail-safe. 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) (noting class is fail-safe, and thus not “manageable,” where class definition is “one that determines the scope of the class only once it is decided that a class member was actually wronged”); see also Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011) (explaining “improper fail-safe class” exists where “[e]ither class members win or, by virtue of losing, they are not in the class, and, therefore, not bound by the judgment”). In the FAC, plaintiff identified the putative class as follows:
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.) The Court found such language defined a fail-safe class, for the reason that a TCPA class consisting of persons who received calls without prior express consent would be a class consisting solely of persons who prevail on the merits. In the SAC, plaintiff now defines the putative class as follows:
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 after such person had revoked any prior express consent to receiving such calls, whether orally, in writing, or by any reasonable means, as demonstrated by [d]efendant’s account notes, recordings of calls, and/or other collections files or records, within the four years prior to the filing of this Complaint.
(See SAC ¶ 13.) The single difference between the newly proposed class definition and the previously proposed class definition is the difference between a class member’s receipt of the call after having “revoked any prior express consent” (see id.), as opposed to not having “previously consented” (see FAC ¶ 13), i.e., a distinction without legal significance. In each instance, a determination of whether a person is a member of the class is dependent on whether he/she prevails on the merits of the TCPA claim alleged in the operative pleading.1 Indeed, it is possible that the newly-proposed class would have no members at all; if the trier of fact were to conclude that no person was called after such person had revoked his/her prior consent, defendant would prevail on the merits against a nonexistent class. See, e.g., Daffron v. Rousseau Associates, Inc., 1976 WL 1358, at *1 (July 27, 1976 N.D. Ind.) (holding proposed class, defined as customers of defendant who were charged “illegal” fee, was “fail-safe,” as “a jury determination that defendants have charged no such illegal fees would at the same time determine that there was no class”). Consequently, the proposed class definition in the SAC will be stricken.