Classified Class Action Blog

  • All Topics
  • Contributors
  • About
  • Contact
  • Subscribe

District Courts Find Impermissible “Fail-Safe” Class Definitions But Deny Motions to Strike Class Allegations

September 28, 2016 by David E. Cannella and Gary M. Pappas

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

Print Friendly, PDF & Email

« Previous Article

Nothing Shady Where State Statutory Language Restricting Class Actions is Clear

Next Article »

Third Circuit Creates Framework for Analyzing Numerosity
David E. Cannella

About David E. Cannella

Dave Cannella is a shareholder at Carlton Fields in Orlando, Florida. Connect with Dave on LinkedIn

Gary M. Pappas

About Gary M. Pappas

Gary Pappas is a shareholder at Carlton Fields in Miami, Florida. Connect with Gary on LinkedIn.

Get Weekly Updates!

2020 Class Action Survey – Now Available!

DOWNLOAD NOW
Carlton Fields Logo A blog focused on the latest class action developments and trends by the attorneys of Carlton Fields.

Search

Topics

Industries/Practices
  • Construction
  • Consumer Finance & Banking
  • Food & Beverage
  • Health Care
  • Insurance
  • Labor, Employment & ERISA
  • Manufacturing & Products
  • Pharmaceutical
  • Privacy & Technology
  • Securities
  • Telecommunications

Substantive/Procedural
  • Arbitration
  • CAFA
  • Certification
    • Adequacy
    • Ascertainability
    • Commonality
    • Numerosity
    • Predominance
    • Superiority
    • Typicality
  • Decertification
  • Settlements
  • Standing
  • Striking of Class Allegations

Courts/Jurisdiction
  • Federal District Courts
  • Federal Circuit Courts of Appeal
  • United States Supreme Court
  • State Courts

Monthly Archives

Recent Articles

  • MDL Court Denies Class Certification of Proposed “NAS Babies” Class
  • What’s Good for Trial Is Good for Class Certification: Fifth Circuit Rules That Daubert Applies at Class Certification Stage
  • One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement

Get Weekly Updates!

Carlton Fields

  • carltonfields.com
  • Practices
  • Industries
  • Class Action Survey

Related Industries/Practices

  • National Class Actions
  • National Trial Practice
  • Appellate & Trial Support
  • Our Class Action Experience

Classified: The Class Action Blog

  • All Topics
  • Contributors
  • About
  • Contact

Classified Logo
© 2014–2021 Carlton Fields, P.A. · Carlton Fields practices law in California as Carlton Fields, LLP · All Rights Reserved · Privacy Policy · Disclaimer

Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please contact us. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites. This site may be considered attorney advertising in some jurisdictions.