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JIM TIMMERBERG | Class Actions Fail-Safe Classes
Class counsel, when dra ing a class de nition, are focused on Rule 23’s commonality,
typicality, and predominance require- ments. To satisfy those requirements, class counsel will cra  a narrow class de nition.  e narrower the de ni- tion, the more likely common ques- tions will predominate. But a class de nition can be too narrow – includ- ing only those who will prevail on the merits. Such class de nitions are im- proper because if the class claims fail none of the putative class members would be bound by the judgment.  is type of class de nition, which only permits class members to be identi ed through a determination on the merits, is a “fail-safe class” and is not permitted under either Ohio or Sixth Circuit law.
 e Sixth Circuit has de ned a fail- safe class as “a class that cannot be de-  ned until the case is resolved on its merits.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir.2012).  e Young court explained that “a ‘fail-safe’ class is one that includes only those who are entitled to relief. Such a class is prohibited because it would allow putative class members to seek a remedy but not be bound by an adverse judgment—either those ‘class members win or, by virtue of losing, they are not in the class’ and are not bound.” Id.
 e Southern District of Ohio, in the context of the Telephone Con- sumer Protection Act claim, held that a class de ned as “all persons within the United States who received a non- emergency telephone call from CVS to a cellular telephone through the use of an automatic telephone dialing system or an arti cial or prerecorded voice and who did not provide prior
express consent for such calls” was a fail-safe class. Sauter v. CVS Phar- macy, Inc., No. 2:13-cv-846, 2014 WL 1814076, *8-9 (S.D. Ohio May 7, 2014).  e court explained that “[i] f the Plainti  successfully demon- strates that the Defendant made calls using an ATDS or arti cial or prere- corded voice to the class members’ cell phones without the class mem- bers’ prior express consent, then the class members win.... However, if the Plainti s are unsuccessful ..., the class does not exist and the class is not bound by the judgment ...  is is the de nition of a prohibited fail-safe class.” Id. at *9.  e Eleventh District, in Unifund CCR Partners v. Plaser, 11th Dist. No. 2017-A-0003, 2018- Ohio-2575, provided several exam- ples of fail-safe class de nitions in the context of the Fair Debt Collection Practices Act: (1) “[defendant] did not meet the FDCPA requirements to lawfully  le suit in its own name”; (2) the defendant’s activities “‘violate the FDCPA’”; and (3) the “collection com- plaints ‘falsely stated that the plainti  had taken assignment of the claims.’” Id. at ¶¶ 46-48. In the context of the Family and Medical Leave Act, a class de nition including “employees who ‘had their rights under the FMLA interfered with or who were retali- ated against for their exercise of rights under the FMLA” de ned a fail-safe class. Wilkinson v. Greater Dayton Re- gional Transit Authority, No. 3:11-cv- 247, 2017 WL 3578702, *7 (S.D. Ohio Aug. 17, 2017).
While de ning the class as includ- ing those persons who will prevail on the merits creates a fail-safe class, merely identifying the harm that the class members have allegedly su ered does not. In San Allen, Inc. v. Buehrer, 8th Dist. No. 99786, 2014-Ohio-2071, the plainti s alleged that the Bureau
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of Workers’ Compensation charged them in ated insurance premiums, and class was de ned as including employers “who paid premiums ... for which the base rate was ‘in ated[.]’” Id. at ¶ 154.  e Eighth District reject- ed the BWC’s argument that the class should be decerti ed as a fail-safe class, noting that the BWC itself had argued that even if the plainti  class were charged in ated premiums, the class members would still lose on the merits because the BWC was not un- justly enriched. Id. at ¶ 155. Because proving that the class members were charged in ated premiums would not establish the BWC’s liability, class was not a fail-safe class.
When a court encounters a fail-safe class de nition, the de nition should be adjusted. In Progressive Health and Rehab Corp. v. Quinn Medical Inc., 323 F.R.D. 242 (S.D. Ohio 2017), the defendants moved to strike the plain- ti  ’s class allegations because the class de nition in the complaint was a fail- safe class. Id. at 245. Although the court agreed that the proposed class de nition de ned a fail-safe class, it declined to strike the class allegations. Id. at 247. Instead, the court permit- ted the plainti  to continue discovery “aimed toward re ning the class de - nition[.]” Id. Similarly, in Sauter, the court agreed that the plainti  should be granted leave to amend a fail-safe class de nition. Sauter, 2014 WL 1814076, *9. Also, in Unifund CCR Partners, having rejected a fail-safe class de nition, the
Eleventh District remanded the mat- ter to the trial court to “remove the fail safe language[.]” Unifund, 2018- Ohio-2575, ¶ 52.
Jim Timmerberg represents plaintiffs in class action suits and complex commercial litigation matters. In addi- tion to earning his Juris Doctor from Case Western Reserve University. Jim holds a master’s degree in European history.
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