At issue before the Court was Plaintiff’s Amended Complaint, and Defendant’s second motion to strike class definition as a fail-safe class. Noting that “[t]he 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 defendant is established,” the Court concluded that the following class definition was an impermissible fail-safe class:
All Persons within the United States who received any collection telephone calls from [d]efendant to said person’s cellular telephone made through the use of any automatic telephone dialing system or artificial or prerecorded voice after such person had revoked any prior express consent to receiving such calls, whether orally, in writing, or by any reasonable means, as demonstrated by [d]efendant’s account notes, recordings of calls, and/or other collections files or records, within the four years prior to the filing of this Complaint.
In striking the class definition, the Court noted that 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.
The Court next addressed Plaintiff’s argument that in the event her class definition was stricken, that the Court amend the class definition to remove the consent requirement and define the class as “All persons within the United States who received any collection telephone calls from [d]efendant to said person’s cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice. 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 question(s) 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.