The Northern District of California granted defendant’s motion to strike plaintiff’s class allegations – twice – as fail safe classes.   See Dixon v. Monterey Fin. Services, Inc., No. 15-cv-03298-MMC, 2016 U.S. Dist. LEXIS 111687 (N.D. Cal. Aug. 22, 2016) and Dixon v. Monterey Fin. Services, Inc., No. 15-cv-03298-MMC, 2016 U.S. Dist. LEXIS 82601 (N.D. Cal. June 24, 2016).  Plaintiff Edith Dixon filed an action against defendant Monterey Financial Services, a third party debt-collector, for alleged violations of the TCPA resulting from calls made by Monterey to Dixon’s cell phone for the collection of money owed on an auto repair bill.   Plaintiff filed her complaint on behalf of herself and a proposed nationwide class of individuals who “had not previously consented” to collection calls to their cellular telephones via ATDS or artificial or prerecorded voice.  Dixon, 2016 U.S. Dist. LEXIS 111687, at *11. 

Defendant filed a motion for summary judgment and to strike plaintiff’s class allegations.  Judge Maxine M. Chesney denied defendant’s motion for summary judgment, but granted its motion to strike class allegations.  Quoting the Ninth Circuit’s decision in Kamar v. RadioShack Corp., 375 Fed. Appx. 734, 736 (9th Cir. 2010), the Dixon court stated that “the fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.”  Dixon, 2016 U.S. Dist. LEXIS 111687, at *11.  Finding that the certification of such a fail-safe class would be “palpably unfair to defendant” and “unmanageable,” the court granted defendant’s motion to strike the class allegations and granted plaintiff leave to amend her complaint. 

Plaintiff fared no better on her second attempt, though.   Less than one month later, defendant Monterey again filed a motion to strike class allegations, contending that the proposed class in the newly filed Second Amended Complaint contained a fail-safe class.  On this attempt, plaintiff focused not on consent but on revocation, proposing a nationwide class of individuals who received calls to their cellular telephones via ATDS or artificial or prerecorded voice who had “revoked any prior express consent to receiving such calls.”  Dixon, 2016 U.S. Dist. LEXIS 111687, at *4.  The single difference between the newly proposed class and the previously proposed class was whether the class member revoked any prior express consent, as opposed to not having previously consented, “a distinction without legal significance.”  Id.

In striking the class definition, the Court noted that the “determination of whether a person is a member of the class is dependent on whether he/she prevails on the merits of the TCPA claim alleged in the operative pleading,” adding that “it is possible the newly-proposed class would have no members at all.  If the trier of fact were to conclude that no person was called after such person had revoked his/her prior consent, defendant would prevail on the merits against a nonexistent class.”  Id. at *4-5.  Thus, as the court would have to examine the legal merits of each potential class member prior to determine whether they could be a member of the class, the court rejected the proposed class as fail-safe.

Finally, the court rejected plaintiff’s argument that in the event her class definition was stricken, that the court should amend the class definition to remove the revocation and prior consent requirement.  Id. at *5.  In declining to make such an amendment itself, the Court considered whether the proposed amendment was futile, noting that to proceed on behalf of a class, a plaintiff must be able to show there are questions of law or fact common to the class. While observing that the nature of the common factual and/or legal questions central to the validity of the TCPA claims plaintiff sought to assert was unclear, the court allowed Plaintiff an additional opportunity to amend the class definition.