In Zarichny v. Complete Payment Recovery Services, Inc., — F.Supp.3d —-, 2015 WL 249853 (E.D.Pa. 2014), Judge Dalzell struck an FDCPA/TCPA class at the pleadings stage because it was an impermissible “fail-safe” class.
Because plaintiff’s class definitions create impermissible fail-safe classes, we need not consider defendants’ second ground for striking her class allegations—that plaintiff is not an adequate class representative because the lead counsel is her employer. A fail-safe class is one that defines its members by the plaintiff’s liability-all individuals wronged by the defendant, in the classic formulation. The class definition requires a determination on the merits before members are identified, creating what the Supreme Court called “one-way intervention,” American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 547 (1974). That is to say, either the class members win or, if the defense prevails, no class exists, and the putative class members, unbound by any judgment, are free to pursue individual claims. Class actions are generally binding on absent class members, but such a class impermissibly skirts the bar of res judicata. To be sure, our Court of Appeals has not yet considered the permissibility of fail-safe classes. Other Circuits that have considered fail-safe classes are split. Both the Sixth and Seventh Circuit have held that fail-safe classes are precluded from certification. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir.2012); see also Randleman v. Fid. Nat’l Title Ins. Co ., 646 F.3d 347 (6th Cir.2011); accord Messner, 669 F.3d 802 (7th Cir.2012). But the Fifth Circuit in In re Rodriguez, 695 F .3d 360 (5th Cir.2012), reaffirmed its rejection of a rule against fail-safe classes based on Fifth Circuit precedent. And the Ninth Circuit has not explicitly precluded fail-safe classes, relying on the same Fifth Circuit precedent. See Vizcaino v. United States Dist. Court for Western Dist. of Wash., 173 F.3d 713, 722 (9th Cir .1999) (rejecting the district court’s reasoning that it was circular to define a class using a legal conclusion that was essential to an ultimate finding of liability). Nonetheless, we are guided by our Circuit’s law on class-action certification. A class action must satisfy the four requirements of Rule 23(a)—“numerosity” of class members; “commonality” to the class of questions of fact or law; “typicality”; and adequacy of the class representative. Shelton v. Bledsoe, ––– F.3d ––––, 2015 WL 74192 at *3 (3d Cir. Jan. 7, 2015). But before we may consider class-action requirements, our Court of Appeals obliges us to establish two preliminary criteria. We must (1) clearly define the perimeter of the class and the claims to be given class treatment pursuant to Rule 23(c)(1)(B), and (2) determine whether the class is objectively ascertainable. Id. The term “ascertainable” does not appear in the text of Rule 23. But an essential prerequisite of a Rule 23 action is that there be a class, and “[c]ourts have generally articulated this ‘essential prerequisite’ as the implied requirement of ‘ascertainability’—that the members of a class are identifiable at the moment of certification,” as Judge McKee explained two weeks ago in Shelton, 2015 WL 74192 at *3. Our Court of Appeals considered the ascertainability requirement in Marcus v. BMW of North America LLC, 687 F.3d 583 (3d Cir.2012), where plaintiffs suing BMW over “run-flat” tires sought to constitute a class comprised of those who bought or leased a new or used BMW from a New Jersey dealership and subsequent owners or lessors of such cars who bought from anyone in New Jersey or anywhere in the country, where the car was initially bought or leased in New Jersey. Marcus, 687 F.3d at 592. Our Court of Appeals concluded in Marcus that the proposed class so defined “raise[d] serious ascertainability issues” because BMW could not know which of its cars came equipped with those tires (made by another company), or when or where the tires might have been replaced. Id. at 593–94. Our Court of Appeals also held in Marcus that “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. at 593. The Court further cautioned against approving a method “that would amount to no more than ascertaining by potential class members’ say so.” Id. at 594. Ascertainability, the Court explained, eliminates administrative burdens that are “incongruous with the efficiencies expected in a class action”, protects absent class members by facilitating notice, and protects defendants “by ensuring that those persons who will be bound by the final judgment are clearly identifiable,” id . at 593 (internal citations omitted). If such ascertainability is not met based on objective criteria, the class definition must fail. A similar problem faces us here. As one commentator explained, “[F]ail-safe classes [are] one category of classes failing to satisfy the ascertainability requirement.” Erin L. Geller, The Fail–Safe Class as an Independent Bar to Class Certification, 81 Fordham L.Rev. 2769, 2782 (April 2013). Both classes Zarichny defined are fail-safe classes. The putative TCPA class is comprised of those people who received CPRS telephone calls without the recipient’s “prior express consent,” 47 U.S.C. § 227(b)(1)(A)(iii). Since we are at the outset of this litigation, there is no way to provide notice to that putative class without the sort of extensive fact-finding that class actions should avoid. Similarly, at the conclusion of the litigation, should CPRS prevail against Zarichny, any other putative class recipient would be free to litigate the same claim against CPRS. Zarichny’s putative FDCPA claim requires a finding that CPRS did not send a written notice pursuant to 15 U.S.C. § 1692g, which would impermissibly require us to certify a class solely on potential class members’ say so. Therefore, we will strike Zarichny’s class allegations from her lawsuit but permit two of her statutory claims to proceed.