In many privacy and other technology-related class actions, the question of whether consumers consent to the practice at issue is central. In these cases, class action defendants have defeated motions for class certification by successfully arguing that consent is an individualized issue that is not susceptible to common proof. And though class action plaintiffs may try and avoid this problem by excluding consenting individuals from their class definition, that solution can create new problems, including impermissible “fail-safe” classes—i.e., classes that cannot be defined until a case is resolved on the merits.
In a recent TCPA class action in the Western District of Kentucky, the district court found that the question of consent was individualized, but nevertheless granted class certification and amended the class definition to exclude individuals who provided consent. See Elliot v. Humana, Inc., 2025 WL 1065755 (W.D. Ky. Apr. 9, 2025). The defendant sought permission under Rule 23(f) to appeal the district court’s order, arguing that the individualized nature of the consent inquiry meant individualized issues would predominate, and that the district court’s amendment to the class definition created a fail-safe class.
The Sixth Circuit denied the request to appeal. See In re Humana, Inc., 2025 WL 3759613 (6th Cir. Dec. 30, 2025). In doing so, the panel found that common issues could still predominate even if consent cannot be determined on a class-wide basis, in part because “a lack of consent can be easily ascertained from Humana’s records,” and because the district court “indicated it would reconsider certification” if issues related to consent “ultimately overwhelm[ed] the common issues.” Id. at *3. The panel also rejected the defendant’s fail-safe class argument, holding that a fail-safe class definition would only include recipients who did not consent. The panel reasoned that the district court’s modification to exclude individuals who consented was permissible because there were other factors relevant to class membership, meaning the “definition was not defined entirely in terms of consent or lack thereof.” Id. (emphasis added).
The order in In re Humana will likely encourage class action plaintiffs to argue that the individualized nature of consent does not automatically defeat predominance, and that excluding consenting individuals from class definitions is permissible. But considering how often these issues arise and the procedural posture of In re Humana, the impact of this order remains to be seen.