On January 21, the U.S. District Court for the Eastern District of Pennsylvania struck a class action under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”) and the Telephone Consumer Protection Act of 1991, 47 U.S.C. §§ 227 et seq. (“TCPA”).  Although the judge allowed the lead plaintiff to pursue her individual claims under these statutes, the judge ultimately concluded that her proposed class was impermissibly “fail-safe.”

The plaintiff allegedly was a college student who periodically rented course books from her college.  Although she maintained that she had no debt, she claimed that she received eleven phone calls from the defendant over a six-month period in violation of the TCPA.  When she finally returned the calls, the operator informed her that the debt concerned two rented books she had not returned.  According to the plaintiff, the operator violated the FDCA by failing to inform her about the supposed debt, and the defendant later violated the FDCPA by continuing to call her at inconvenient times.

The plaintiff intended to certify two classes of plaintiffs: one encompassing anyone who had received telephone calls from the defendant without a written notice in violation of the FDCPA, and another including anyone who had received telephone calls from the defendant’s automated dialing system without prior consent in violation of the TCPA.

In response to the defendant’s motion to dismiss, the judge held that these proposed class definitions were inappropriately “fail safe” because they defined membership according to whether a claimant has a valid claim.  In other words, the definition assumed what the litigation was meant to establish.  Thus, if certain class plaintiffs were ultimately unable to prove their claims, they would disappear from the class but would not be bound by the defendant’s favorable judgment and potentially could pursue their claims individually later down the road.


Notable also was the judge’s decision to strike the plaintiff’s class allegations before the plaintiff had formally moved for class certification or before discovery had occurred.  Although the court acknowledged a circuit split on whether a fail-safe class definition independently precluded class certification, it nevertheless concluded that the plaintiff’s class definition was facially invalid because it rendered her class unascertainable.