We previously reported on the Taylor case’s holding that a TCPA plaintiff need not plead that they incurred a cost as a result of the TCPA-offending call. (http://www.calautofinance.com/?p=5147). This week, however, in Taylor v. Universal Auto Group I, Inc., 2014 WL 6654270 (W.D.Wash. 2014), Judge Strombom found that Plaintiff had met all of the usual requirements of FRCP 23 to have a TCPA class certified – numerosity, commonality, typicality, ascertainability, superiority, and class representative adequacy. Judge Strombom then said, however, that a TCPA class that fails to deal with the issue of “consent” constitutes an impermissible “failsafe” class and, therefore, class certification should be denied.

Defendant also contends the national class is an improper “failsafe” class. A “failsafe” class happens “when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.” Olney, 2013 WL 5476813, at *11 (quoting Kamar v. RadioShack Corp., 375 Fed. Appx. 734, 736 (9th Cir.2010)); see also Sauter v. CVS Pharmacy, Inc., 2014 WL 1814076, at *4 (S.D.Ohio May 7, 2014) (class definition that “cannot be defined until the case is resolved on its merits” is impermissible) (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir.2012)). Such a class “includes only those who are entitled to relief.” Sauter, 2014 WL 1814076, at *4 (quoting Young, 693 F.3d at 538) (emphasis in original). It “is prohibited because it would allow putative class members to seek a remedy but not be bound by an adverse judgment—either those ‘class members win or, by virtue of losing, they are not in the class’ and are not bound.” Id. ¶ A “failsafe” class “is not only ‘palpably unfair to the defendant’ “ for these reasons, “but it is also unmanageable because it is unclear in such cases to whom class notice should be sent.” Ubaldi, 2014 WL 1266783, at *6 (quoting Kamar, 375 Fed. Appx. at 736). The existence of a “failsafe” class “constitute[s] an independent ground for denying class certification.” Sauter, 2014 WL 1814076, at *5 (citing Randleman v. Fidelity Nat. Title Ins. Co., 646 F.3d 347, 352 (6th Cir.2011)). As noted above, the national class is defined as: “All persons in the United States who received a call on their cellular telephone line with a prerecorded message, initiated by or on behalf of Defendant, marketing Defendant’s products and services, and without the recipient’s prior express consent, at any time in the period that begins four years from the date of this complaint to trial.” ECF # 1, p. 5, § 7.1 (emphasis added). But “[b]ecause the TCPA prohibits calls to cellular telephones using [an automatic telephone dialing system or an artificial or prerecorded voice] unless prior express consent has been given,” defining the national class in this way “means that only those potential members who would prevail on this liability issue would be members of the class.” Olney, 2013 WL 5476813, at *11; see also Sauter, 2014 WL 1814076, at *8–*9.FN9 [FN9. As the district court in Sauter explained: “If the Plaintiff successfully demonstrates that the Defendant made calls using an [ADAD] or an artificial or prerecorded voice to the class members’ cell phones without the class members’ prior express consent, then the class members win. See 47 U.S.C. § 227(b)(1)(A)(iii). However, if the Plaintiffs are unsuccessful in meeting their burden of proof, the class does not exist and the class is not bound by the judgment in favor of the Defendant. This is the definition of a prohibited fail-safe class….” Id. at *9.] ¶ Citing Wolfkiel v. Intersections Ins. Servs. Inc., 2014 WL 866979 (N.D.Ill. Mar. 5, 2014), plaintiff asserts not all district courts agree on this issue. But while the district court in Wolfkiel stated it was “not yet persuaded” that such definitions produce impermissible “failsafe” classes, as it was “not clear to [the court] that [it] creates a situation where membership in the class is dependent upon the validity of a putative member’s claim,” that court offered no further explanation for its position. Id. at *6. This Court, however, 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. Plaintiff is correct, though, that rather than denying certification “simply because the initially proposed class is a ‘failsafe’ class,” the “problem … should be resolved by refining the class definition” ( Sauter, 2014 WL 1814076, at *9; Olney, 2013 WL 5476813, at *11), and to the extent such is possible, the Court shall grant plaintiff the opportunity to do so as discussed further below ( see Powers v. Hamilton Cnty. Pub. Defender Com’n, 501 F.3d 592, 619 (6th Cir.2007) (“[D]istrict courts have broad discretion to modify class definitions.”).