306 F.R.D. 536
E.D. Mich.2015Background
- Plaintiff Kenneth Boyer sued DCI and LiveVox under the TCPA alleging individual and class claims for autodialer and prerecorded/artificial-voice calls to cellular phones.
- Two nationwide classes were proposed: (1) Autodialer Class — persons called on a cell phone by DCI via an ATDS who did not provide their number as an authorized contact for the debt; (2) Prerecorded Voice Class — persons who received prerecorded/artificial-voice messages via LiveVox and likewise did not provide their number as an authorized contact.
- Defendants moved to strike the class allegations as legally impermissible “failsafe” classes under Fed. R. Civ. P. 12(f) and Rule 23(d)(1)(D).
- The central legal question: whether the class definitions are impermissible because they effectively define class membership by the merits issue of lack of prior express consent (i.e., membership would require prevailing on liability).
- The court found the current class definitions to be failsafe (impermissible) because they hinge on the absence of prior express consent, meaning only those who prevail would be class members.
- The court granted the motion to strike but gave Boyer 14 days (until May 4, 2015) to amend the complaint to cure the defective class definitions and proceed toward class certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the proposed class definitions are impermissible failsafe classes | Boyer: class uses objective criteria (did not provide number as authorized contact) and is premature to decide; discovery may show a class-wide source of consent and avoid failsafe problem | DCI/LiveVox: definitions are functionally consent-based and thus fail-safe because membership requires proving lack of prior express consent (a merits issue) | Court: Struck class allegations as legally impermissible failsafe classes but allowed leave to amend |
| Whether plaintiff should get leave to amend after striking class allegations | Boyer: requested opportunity to amend/complete discovery to cure definitions | Defendants: sought to eliminate class claims now as legally barred | Court: Granted leave to amend within 14 days to propose non-failsafe class definitions |
Key Cases Cited
- Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir.) (explains and prohibits “failsafe” class definitions that make membership depend on prevailing on the merits)
- Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347 (6th Cir.) (discusses unfairness of failsafe classes and grants leave to amend where appropriate)
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir.) (addresses when lack-of-consent issues can or cannot be resolved on a class-wide basis)
- Wolfkiel v. Intersections Ins. Servs., Inc., 303 F.R.D. 287 (N.D. Ill. 2014) (analyzed a “no-consent” TCPA class and declined to conclude at pleading stage that it was fail-safe where a single source of contact data might permit class-wide proof)