District Courts Find Impermissible "Fail-Safe" Class Definitions But Deny Motions To Strike Class Allegations

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