In Owens v. Starion Energy, Inc., 2017 WL 2838075, at *8–9 (D.Conn., 2017), Judge Bolden refused to strike an attorneys’ fee prayer from a TCPA class action.
In Bell v. Survey Sampling International, LLC, a TCPA case, this Court rejected a similar motion to strike the plaintiff’s reference to attorney’s fees. Id. The Court in Bell stated as follows: “[The defendant] is correct that “[t]he TCPA makes no provision for attorney’s fees or costs.” Klein v. Vision Lab Telecommunications, Inc., 399 F. Supp. 2d 528, 542 (S.D.N.Y. 2005). However, [the plaintiff] is also correct that if the class were certified and the litigation ultimately resulted in a common fund benefiting unnamed class members, I could “award attorneys’ fees … under either the ‘lodestar’ method or the ‘percentage of the fund’ method.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005). In this case, denying the motion to strike the attorney’s fees claim would not “result in prejudice to the movant.” HSN Nordbank AG, 2015 WL 1307189, at *3. The parties may rest assured that the court will not ultimately award attorneys’ fees where they are not authorized by law.” As was the case in Bell, there is no evidence that any prejudice would result from allowing reference to attorney’s fees to remain in the Complaint, nor has Starion Energy demonstrated at this early stage that there would be no admissible evidence that could support such an award. Accordingly, Starion Energy’s motion is premature, and striking portions of the Complaint is not necessary on this basis.
The District Court also refused to strike the class allegations on the basis that the class was a fail-safe class.
2. Class Definition. Finally, Starion Energy challenges the proposed class of plaintiffs identified in the Complaint. According to Starion Energy, the proposed class is a “fail-safe class,” meaning that it impermissibly limits the class to those entitled to relief, thus the proposed class should be stricken from the Complaint. Def. Mem. in Supp. at 20-21. The Court disagrees. Starion Energy’s motion is premature. While it is true that a “fail-safe class” may not ultimately be permissible, see Hicks v. T.L. Cannon Corp., 35 F. Supp. 3d 329, 356–57 (W.D.N.Y. 2014) (“A proposed ‘fail-safe’ class should not be certified because it is unfair to defendants, it prevents an adverse judgment being entered against plaintiffs, and it is unmanageable because the members of the class could only be known after a determination of liability”), courts in this Circuit have also found that a class may proceed even when it is determined to be “fail-safe,” see id. (“[a] finding of a fail-safe class does not result in a bar to certification of the class … Despite a fail-safe class definition, courts have the discretion ‘to construe the complaint or redefine the class to bring it within the scope of Rule 23”) (internal citations and marks omitted). This case has not yet reached the class certification stage. At that time, “[t]he party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). Starion Energy’s concerns about the potential “fail-safe” nature of the proposed class are best resolved at the class certification stage, not through a motion to strike. Spread Enterprises, Inc. v. First Data Merch. Servs. Corp., 298 F.R.D. 54, 69 (E.D.N.Y. 2014) (addressing concerns about fail-safe class on motion for class certification stage). Thus, the Court declines to determine issues related to class certification before discovery has taken place, and Starion Energy’s motion to strike the proposed class is denied.