Fail-Safe Class Doctrine Helps Identify Weak TCPA Classes

Law360, New York (October 4, 2017, 4:36 PM EDT) -- In the last five years, federal courts have begun denying class certification for so-called “fail-safe” classes. The fail-safe class concept (explained below) derives from a combination of the rules of class certification and res judicata, and is not exactly intuitive. But it reveals something useful about the general weakness in many non-fail-safe class definitions under the Telephone Consumer Protection Act.

In general, a fail-safe class is a class whose membership is defined by a legal concept key to winning the case — like a class defined...
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