Judge Graham has struck the definition of a putative Telephone Consumer Protection Act (TCPA) plaintiff class against CVS Pharmacy, Inc. because membership in the class, as defined, was coextensive with a determination of liability, rendering it an impermissible “fail-safe” class. Sauter v. CVS Pharmacy, Inc., No. 2:13-cv-846 (S.D. Ohio May 7, 2014). The named plaintiff, Chris Sauter, alleged that he had received from CVS an unsolicited automated call to his cellular phone regarding a prescription refill, even though he had not given prior consent for the call. Sauter sought to represent a nationwide class of persons who received automated calls from CVS but did not provide prior consent, and included two subclasses: one limited to calls received after October 16, 2013; and another based on recipients who had revoked previously given consent.

Judge Graham cited at length Sixth Circuit precedent regarding “fail-safe” classes, as well as other district court decisions that have addressed the “fail-safe” issue specifically in the context of TCPA no-consent classes. Two of the three other district courts to address the question were split on the issue — 2-1 in favor of concluding that no-consent TCPA classes are, indeed, “fail-safe.” Judge Graham agreed, holding that “[b]ecause the TCPA prohibits calls to cellular telephones using ATDSs 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.” However, Judge Graham also has permitted the plaintiff to amend the class definition, since the “fail-safe” problem “can and often should be solved by refining the class definition rather than by flatly denying class certification.” Sauter has until May 21, 2014, to revise the proposed class definition accordingly.