In Costa v. Dvinci Energy, Inc., Civil Action No. 21-11501-NMG, 2022 U.S. Dist. LEXIS 130208, at *4-6 (D. Mass. July 22, 2022), Judge Gorton declined to strike a TCPA class action at the pleadings stage despite complaints that it is a “fail-safe” class.
Dvinci contends that the proposed class is fail-safe—and thus must be struck—because it defines its membership in terms of Dvinci’s liability under the TCPA. The TCPA authorizes the Federal Communications Commission (“the FCC”) to regulate telephone solicitations made to residential telephone subscribers. 47 U.S.C. § 227(c). Pursuant to that authority, the FCC has prohibited the solicitation by telephone of any person “who has registered his or her telephone number on the national do-not-call registry.” 47 C.F.R. § 64.1200(c)(2). A caller will not be liable for making solicitations to a number listed on the Registry if, however, 1) the call is made in error, 2) the caller has obtained the person’s “prior express invitation or permission” or 3) the caller has a personal relationship with the recipient of the call. Id. The proposed class definition tracks the language of the TCPA and related FCC regulations in several important respects. It requires, for instance, that class members have listed their number on the Registry for more than 30 days and have received more than one call from Dvinci within a 12-month period. Nevertheless, the Court is unpersuaded that the class is fail-safe. Although the statute and the proposed definition employ similar language, a person’s membership can be determined without reaching any legal conclusions about Dvinci’s liability. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (declining to find fail-safe class because “[p]laintiffs’ classes will include both those entitled to relief and those not”). For instance, the proposed class could encompass people to whom Dvinci would not be liable, such as those who had given Dvinci prior written consent to solicit or those whom Dvinci called by mistake. Most district courts that have considered similar proposed classes are in accord. See, e.g. Johansen v. One Planet Ops, Inc., No. 2:16-cv-00121, 2018 U.S. Dist. LEXIS 47776, at *4 (S.D. Ohio Mar. 5, 2018) (holding that an essentially identical proposed class was not fail-safe); Panacci v. A1 Solar Power, Inc., No. 15-cv-00532-JCS, 2015 U.S. Dist. LEXIS 77294 at *22-24 (N.D. Cal. June 15, 2015) (same); but see Bryant v. King’s Creek Plantation, L.L.C., No. 4:20-CV-00061, 2020 WL 6876292, at *3 (E.D. Va. June 22, 2020) (striking TCPA class as fail-safe). Recently, another session of this Court denied a motion to strike class allegations in a TCPA case with a similar, albeit somewhat more restrictive, class definition. Sagar v. Kelly Auto. Grp., Inc., No. 21-cv-10540-PBS, 2021 U.S. Dist. LEXIS 227781, at *20 (D. Mass. Nov. 29, 2021) (holding that the requirement of listing on the Registry did not create a class “impermissibly based on a legal conclusion”). This Court agrees that it is “difficult to imagine” how a plaintiff could define a TCPA class without requiring that its members have telephone numbers listed on the Registry or have received calls from defendant. It likewise concludes that such criteria “do not trigger fail-safe concerns.” Id. Defendants nevertheless illogically contend that the proposed class is fail-safe because class members must be similarly situated to [p]laintiff by also not providing prior express written consent to be called. As has been discussed, no such mandate appears in the proposed class definition and the objection seems better directed at the class’s compliance with the requirements of Fed. R. Civ. P. 23(a) and (b)(3). Any such argument is premature at best. Costa has plausibly alleged that there are questions of law and fact common to the claims of the class members which predominate over other issues and the Court thus will not strike the class allegations at this juncture. Rosenberg, 435 F. Supp. 3d at 318 (holding that defendant’s “citation of consent as a potential affirmative defense is insufficient to warrant striking the putative class solely on the pleadings”).