Two recent decisions from the Eastern District of Illinois involving the Telephone Consumer Protection Act (TCPA), decided a day apart, provided valuable insight as how this court will respond to motions to strike class allegations that include impermissible “fail-safe” class definitions. Although both courts found that plaintiffs proposed fail-safe classes, the courts denied defendants’ respective motions to strike class allegations and provided plaintiffs leave to amend the class definitions.

In Mauer v. American Intercontinental University, et. al., plaintiff sought to represent a class of persons who received unsolicited automatic dialing system (ADS) telephone calls to their cell phones in violation of the TCPA. A required element of a such a TCPA claim is that the recipient of the call did not provide consent. Plaintiff’s complaint defined the class as all persons who received one or more ADS telemarketing calls without previously providing consent to be contacted. Plaintiff did not file a “placeholder” motion to certify with the complaint.

In Alpha Tech Pet, Inc. v. Lagasse, LLC, et. al., a recipient of unsolicited fax advertisements sued for TCPA violations on behalf of a putative class defined as all persons who received such fax advertisements without prior express permission or invitation or which did not display a proper opt-out notice. Liability under the TCPA for faxed advertisements turns on whether the defendant failed to obtain prior consent or to provide an opt-out notice. Unlike in Maurer, plaintiff did file a “placeholder” motion to certify along with the complaint.

Defendants in both cases filed motions to strike the class allegations because, by including the absence of consent in the class definition, plaintiffs were proposing an impermissible “fail-safe” class. A “fail-safe” class is one in which the class is defined in terms of success on the merits ­– that is, whether a person is a member of the class depends on whether the person has a valid claim. The problem with fail-safe classes is that if a plaintiff loses, he or she drops out of the class, is not bound by the judgment, and may sue the defendant again.

The plaintiff in Mauer responded to the motion to strike by proposing to amend the definition to include anyone who received a call, regardless of consent. The court agreed with the defendant that plaintiff proposed a fail-safe class but denied the motion to strike as premature, subject to reconsideration when plaintiff files a motion for class certification with an amended class definition as plaintiff proposed. The Alpha Tech court also agreed that plaintiff had proposed an impermissible fail-safe class yet denied defendant’s motion like its sister court in Mauer. The Alpha Tech court went one step further by describing an alternative class definition to avoid the fail-safe problem and granting plaintiff leave – unsolicited – to amend the class definition in a manner consistent with the court’s definition.

In both cases, the courts noted that although motions to strike class allegations are appropriate at the pleading stage where it is clear from the pleadings that the class claims are defective, the motions to strike in these cases were denied because the class definitions could be amended to avoid the identified defects.

Mauer v. American Intercontinental University, et. al, (N.D. Ill. Sept 8, 2016) Case No. 16 C 1473

Alpha Tech Pet, Inc. v. Lagasse, LLC, et. al. (N.D. Ill. Sept. 7, 2016) Case No. C 513