Kenneth Boyer filed a putative class action against Diversified Consultants, Inc. (“DCI”) and LiveVox, Inc., in the United States District Court, Eastern District of Michigan, alleging that DCI, through LiveVox, initiated telephone calls using an automatic telephone dialing system (“ATDS”) and/or prerecorded voices, in alleged violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).  On April 20, 2015, the Eastern District of Michigan struck Boyer’s class allegations.  Boyer v. Diversified Consultants, Inc., No. 14-cv-12399, 2015 U.S. Dist. LEXIS 58420 (E.D. Mich. April 20, 2015). 

Boyer proposed two classes.  First, a class of individuals who subscribed to a cellular telephone to which DCI initiated a call using an ATDS, and where the person “did not provide his or her phone number to DCI.”  Similarly, Boyer proposed a second class of persons who received calls that used a prerecorded message to their wireless phone, and who “did not provide her or her phone number to DCI….”

DCI moved to strike the class allegations on the grounds that the proposed classes constituted fail-safe class definitions.  A fail-safe class definition is one that is defined so that only those who are entitled to relief are part of the class—in such circumstances, if a defendant prevails on liability, that necessarily means that no persons are part of the ultimate class.  Here, DCI argued that Boyer’s class definitions constituted fail-safe classes because they were defined to only include those persons who did not give DCI consent to call—and thus constituted fail-safe classes, because if DCI proved that some or all persons did give consent, they would no longer be class members and would not be bound by any adverse judgment.

In opposing DCI’s motion to strike, Boyer argued that DCI’s motion was premature as discovery would “allow him to redefine the classes in a matter that avoids a failsafe class.”  In rejecting the plaintiff’s argument, the district court noted that a motion to strike must be judged by “whether the classes as currently defined are legally permissible.”  The court concluded that the proposed classes were fail-safe definitions, and granted DCI’s motion to strike.  The court, however, granted Boyer fourteen days to file an amended complaint with a modified class definition.