In Tillman v. Ally Financial, Inc. 2016 WL 6996113 (M.D. Fla. 2016), the Court allowed a TCPA class action proceed, denying that the class definition is a “fail-safe” class.
Finally, defendant moves in the alternative to strike the Complaint’s class allegations on the ground that plaintiff has proposed an impermissible “fail-safe” class. A fail-safe class is one whose definition incorporates the elements of a successful legal claim, such that determining whether an individual or entity is a member of the class “front-ends a merits determination on [the defendant’s] liability.” Alhassid v. Bank of Am., N.A., 307 F.R.D. 684, 694 (S.D. Fla. 2015); see Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010) (“The 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.”). Being granted membership in the class is thus synonymous with a victory on the underlying claim. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (“[A] ‘fail-safe’ class is one that includes only those who are entitled to relief….[E]ither those ‘class members win or, by virtue of losing, they are not in the class’ and are not bound [by the judgment].” (quoting Randleman v. Fid. Nat. Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011))). . .The Court agrees that, as written, the proposed class and sub-classes appear “fail-safe.” Rather than simply requiring, for example, that an individual have received the same autodialed call plaintiff received, the class incorporates the elements of a viable autodialed call claim, including the applicable statute of limitations. See 47 U.S.C. § 227(b)(1)(A)(iii); 28 U.S.C. § 1658(a). Analyzing whether a particular individual is a proper member of plaintiff’s class will, therefore, result in a merits-based determination on defendant’s liability under the TCPA to that individual. It is less clear, however, that such a class is “impermissible.” The Eleventh Circuit has not yet addressed whether a fail-safe class can nevertheless be certified, and there is a split of authority among the Circuit Courts that have decided the issue. See Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610, 624 (E.D. Pa. 2015) (collecting cases). Notwithstanding, this Court recently agreed with those district courts that have held that such argument is more appropriately raised at the class-certification stage. See JWD Automotive, Inc. v. DJM Advisory Group LLC, — F. Supp. 3d —, 2016 WL 6835986, at *5 (M.D. Fla. Nov. 21, 2016) (citing Arkin v. Innocutis Holdings, LLC, No. 8:16-cv-321-T-27TBM, 2016 WL 3042483, at *7 (M.D. Fla. May 26, 2016); Mauer v. Am. Intercontinental Univ., Inc., No. 16 C 1473, 2016 WL 4698665, at *3 (N.D. Ill. Sept. 8, 2016); Haghayeghi v. Guess?, Inc., No. 14-CV-00020 JAH-NLS, 2015 WL 1345302, at *6 (S.D. Cal. Mar. 24, 2015)). Consequently, the Court denies defendant’s request to strike plaintiff’s proposed class at this time.