In Booth v. Appstack, Inc., 2015 WL 1466247 (W.D. Wash. 2015), Judge Robart re-defined a TCPA-telemarking class definition to avoid fail-safe problems.  In its ascertainability analysis, the District Court redifined the class definition to deal with the fail-safe problem by eliminating the requirement of proof of non-consent by each classmember.

Defendants’ final argument is that the class is not ascertainable because each potential member would have to demonstrate that it did not give prior express consent to be called in order to be included in the class. (Reply at 21.) The court shares Defendants’ concern about the requirement for lack of prior express consent, albeit for a slightly different reason.  As phrased, Plaintiffs’ definition is a “fail-safe” class. A fail-safe class occurs “when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.” Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir.2010). “Because the TCPA prohibits calls to cellular telephones using [a prerecorded voice] unless prior express consent has been given, defining the class to include anyone who received such a call without prior express consent means that only those potential members who would prevail on this liability issue would be members of the class.” Onley v., Inc., No. 1:12–CV–01724–LJO, 2013 WL 5476813, at *11 (E.D.Cal. Sept.30, 2013) (finding that a class definition that recited all of the elements of a TCPA claim and the requirement of a lack of prior consent was fail-safe); see also Taylor v. Universal Auto Grp. I, Inc., No. 3:13–CV–05245–KLS, 2014 WL 6654270, at *22 (W.D.Wash. Nov.24, 2014) (“The court … is persuaded that inclusion of the ‘without prior consent’ language in the national classes definition makes it a ‘failsafe’ class, as clearly the issue of consent is central to determining defendant’s liability.).  Although the Ninth Circuit has not categorically forbid fail-safe classes, it has discussed their dangers. In re AutoZone, Inc., Wage & Hour Emp’t Practices Litig., 289 F.R.D. 526, 546 (N.D.Cal.2012) (quoting Kamar, 375 F. App’x at 736). The problem with a fail-safe class is that, “once it is determined that a person, who is a possible class member, cannot prevail against the defendant, that member drops out of the class.” Kamar, 375 F. App’x at 736. Either the class members win or are not in the class, but the court cannot enter an adverse judgment against the class. In re AutoZone, Inc., 289 F.R.D. at 545–46. That result is not only “palpably unfair to the defendant” but it is “also unmanageable [from the outset]—for example, to whom should the class notice be sent?” Kamar, 375 F. App’x at 736.  Consequently, district courts have discretion to redefine a class to avoid the problems inherent in fail-safe classes. See In re AutoZone, Inc., 289 F.R.D. at 545–46; Heffelfinger v. Elec. Data Sys. Corp., No. CV 07–00101 MMM EX, 2008 WL 8128621, at *10 (“Given the difficulties with the proposed [fail-safe] class definition set forth in plaintiffs’ motion, the court has discretion either to redefine the class or to afford plaintiffs an opportunity to do so.”); Gray v. Cnty. of Riverside, No. EDCV 13–00444–VAP, 2014 WL 5304915, at *13 (C.D.Cal. Sept.2, 2014) (revising a class definition to avoid a fail-safe class). Accordingly, in Onley, the court removed the requirement for a lack of prior consent from the TCPA in order to avoid ascertainability problems associated with the previous fail-safe definition. See Onley v., Inc., No. 1:12–CV–01724–LJO, 2013 WL 5476813, at *11 (modifying the class definition to read “[a]ll persons within the United States who received any telephone call/s from Defendant … to said person’s cellular telephone made through the use of any automatic telephone dialing system….”).  The court agrees that such an approach is appropriate here. Omitting the requirement “without the recipient’s prior consent” removes the need to identify which persons gave consent in order to determine the scope of the class, as well as the need to effectively determine liability in order to send class notice. As a result, the class definition is ascertainable.