Some class action plaintiff lawyers facing individualized liability issues will try to obtain class certification by defining the proposed class in a way that assumes liability.  It’s somewhat akin to the baseball player who runs outside the baseline to avoid a waiting tag.  But just as the umpire will call the wayward baserunner out anyway, a court can strike the plaintiff’s class allegations if they propose a “fail safe” class definition—such that the class cannot be defined until the case is resolved on its merits.

A recent federal case in Ohio reviewed the “fail safe” issue in the context of the Telephone Consumer Protection Act, which prohibits the use of unconsented calls to cellular telephones using an automatic dialing system or an artificial or prerecorded voice.  In Sauter v. CVS Pharmacy, Inc.the plaintiff sought to represent a nationwide class of persons who received such calls from CVS “and who did not provide prior express consent for such calls.”  After analyzing several “fail safe” cases within the Sixth Circuit and in the TCPA context, the court found that the plaintiff had alleged a “fail safe” class definition and struck the complaint’s class allegations.

The problem?  The limitation to class members “who did not provide prior express consent” for the calls.  The court found that the proposed class consisted solely of persons who could establish that the defendant violated the TCPA.  If the plaintiff could demonstrate that the calls were made to the class members’ cell phones without their prior express consent, than the class would win; if not, then the class would not exist—and therefore would not be bound by the judgment in CVS’ favor.

The court granted the plaintiff leave to amend his complaint.  How can he solve the problem?  He could follow the lead of the plaintiff in Olney v., Inc., a California federal case from last year, who attempted to bring similar TCPA claims on behalf of call recipients who “had not previously consented to receiving such calls” during the class period.  The court there rejected the class definition as fail-safe and granted leave to amend.  The amended complaint removed the consent element, broading the definition to include all persons in the United States who received cellular calls from the defendant through the use of an automatic dialing machine.  The court found that this definition was sufficient to avoid a “fail safe” problem.  The plaintiff inSauter could similarly amend.

But under such an amended definition, the plaintiff’s counsel will face a different problem at class certification:  predominance.  By broadening the class to include every person who received an automated call from the defendant, the plaintiff’s amended class definition would raise individualized questions of whether each class member consented to the calls.  And this is likely to be the primary, if not the only, factual issue in dispute.  Will the plaintiff be able to establish that common questions predominate over individual questions?

Some lawsuits, even though the individual claims may be small, depend so heavily on individualized determinations of fact that they are simply not appropriate for class treatment. Sauter may prove to be one of them.  In such cases, the defendant is not necessarily required to wait until the class certification stage to make this argument.