District Court (Cal.) Says Plaintiff’s Allegations of Use of Internet Spoofing Device to Disguise Calls Was Insufficient to Allege that Call Was Made by an ATDS; Says, However, That Class Definition Was Not a “Fail-Safe” Class

In Waterbury v. A1 Solar Power Inc., 2016 WL 3166910, at *3 (S.D.Cal., 2016), Judge Anelo found that a TCPA plaintiff had not adequately pleaded the use of an ATDS.

Defendants contend Plaintiff Bell has not stated a claim under the TCPA because she has not adequately alleged that Defendants used an ATDS. Plaintiff Bell alleges Defendants violated a provision of the TCPA which makes it unlawful “for any person… to make any call… using any automatic telephone dialing system or an artificial or prerecorded voice” to “a cellular telephone service” or “any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A). ATDS is defined as “equipment which has the capacity… (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). “In reviewing the adequacy of ATDS allegations, courts consider whether, read as a whole, the complaint contains sufficient facts to show that it is plausible that Defendants used an ATDS.” Vaccaro v. CVS Pharmacy, Inc., 2013 WL 3776927, at *2 (S.D. Cal. 2013) (internal quotations and alterations omitted) (citing Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010)). [FN 3: Plaintiff Bell alleges Defendants used an “internet generated spoof number” to call her cellphone. However, this allegation is irrelevant to whether Defendants used an ATDS. The issue of “spoofing” arises frequently in cases involving debt collection, as debt collection agencies may use “spoofing devices” that “make it appear that a collection call is coming from a local number to trick the recipient into thinking the call is from a local caller.”. . . Accordingly, whether Defendants or their equipment disguised their phone number is not probative of whether Defendants’ equipment meets the definition of an ATDS under the TCPA.]

The Court found, however, that the Plaintiff had not pleaded a fail-safe class.

Defendants move to strike Plaintiffs’ class definitions pursuant to Rule 12(f) because they are improper failsafe class definitions. Plaintiffs argue that they have not pleaded improper failsafe class definitions, and that it is procedurally improper for the Court to strike Plaintiffs’ class definitions pursuant to Rule 12(f).  A failsafe class is one that is “defined by the merits of the claim.” Panacci v. A1 Solar Power, Inc., No. 15CV00532-JCS, 2015 WL 3750112, at *4 (N.D. Cal. June 15, 2015); see also Haghayeghi, 2015 WL 1345302, at *6. In other words, a failsafe class definition requires the court “to reach a legal conclusion on the validity of a person’s claim in order to determine whether the person is in the class,” meaning the class is unascertainable prior to a liability determination. Panacci, 2015 WL 3750112, at *8. (citing Brazil v. Dell, Inc., 585 F. Supp. 2d 1158, 1167 (N.D. Cal. 2008). Courts may strike class definitions defining failsafe classes at the pleading stage. Id. (citing Brazil, 585 F. Supp. 2d at 1167). However, most courts decline to grant motions to strike class allegations prior to motions for class certification because “the shape and form of a class action evolve[ ] only through the process of discovery.” Simpson v. Best W. Int’l, Inc., No. 3:12–CV–04672–JCS, 2012 WL 5499928, at *9 (N.D. Cal. Nov. 13, 2012) (quoting In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007)). . . . Plaintiffs do not use failsafe class definitions. The Court can determine membership in Plaintiffs’ putative classes using objective criteria, as in Panacci. Panacci, 2015 WL 3750112, at *8–9 (finding plaintiff’s class definitions were not failsafe because the court need not make legal conclusions in order to determine membership, it need only look to objective criteria such as whether one’s phone number was listed on the do-not-call registry). This case is unlike cases where courts have granted motions to strike failsafe class definitions, such as in Brazil, where the court struck a class definition that included persons who purchased products that the defendant “falsely advertised as discounted.” 585 F. Supp. 2d at 1167 (emphasis added). The failsafe nature of the class definition in Brazil was obvious, unlike in Panacci and the instant case.  Because Plaintiff’s class definitions “lack obvious defects” and courts rarely strike class allegations at the pleading stage, the Court declines to strike Plaintiff’s class definitions from the FAC. See Panacci, 2015 WL 3750112, at *9; see also Haghayeghi, 2015 WL 1345302, *6 (S.D. Cal. 2015) (declining to strike class allegations until the class certification stage); Loveless v. A1 Solar Power, Inc., No. EDCV141779FMODTBX, 2015 WL 4498787, at *3 (C.D. Cal. July 23, 2015) (same). The Court DENIES Defendants’ motion to strike.