Kamar v. RadioShack Corp., 375 F. App'x 734 (9th Cir. 2010). · Go Syfert
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Kamar v. RadioShack Corp., 375 F. App'x 734 (9th Cir. 2010). Cases Citing This Book View Copy Cite
“the fail-safe appellation is 21 simply a way of labeling the obvious problems that exist when the class itself is defined in 22 a way that precludes membership unless the liability of the defendant is established.”
35 citation events (35 in the last 25 years) across 18 distinct courts.
Strongest positive: Winters v. Loan Depot LLC (azd, 2022-03-17)
Treatment trajectory · 2012 → 2026 · click a year to view as-of
2012 2019 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Winters v. Loan Depot LLC
D. Ariz. · 2022 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the fail-safe appellation is 21 simply a way of labeling the obvious problems that exist when the class itself is defined in 22 a way that precludes membership unless the liability of the defendant is established.
examined Cited as authority (verbatim quote) JWD Automotive, Inc. v. DJM Advisory Group LLC
M.D. Fla. · 2016 · signal: see · quote attribution · 1 verbatim quote · confidence high
the fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.
discussed Cited as authority (rule) Powers v. Receivable Performance Management, LLC
D. Mass. · 2025 · confidence medium
Further, in amending the proposed definition by the relief sought, the Court was cognizant to avoid creating a “fail-safe” class, which is created when the class definition is “circular [in a way] that determines the scope of the class only once it is decided that a class member was actually wronged.” Kamar v. Radio Shack Corp., 375 F. App'x 734, 736 (9th Cir. 2010).7 Additionally, the Court’s limitation of the class to only those who do not seek actual damages is based on factual questions, not a legal determination.
discussed Cited as authority (rule) McMillian v. Out-Look Safety LLC (2×)
N.Y. App. Div. · 2025 · confidence medium
A "fail safe" class exists "when the class itself is defined in a way that precludes membership unless the liability of the defendant is established" ( Spread Enterprises, Inc. v First Data Merchant Services Corp., 298 FRD 54, 69 [ED NY 2014], quoting Kamar v Radio Shack Corp ., 375 Fed Appx 734, 736 [9th Cir 2010]).
discussed Cited as authority (rule) Nichols v. eHealthInsurance Services, Inc. (2×) also: Cited "see, e.g."
N.D. Cal. · 2025 · confidence medium
By 17 contrast, a fail-safe class “is defined in a way that precludes membership unless the liability of the 18 defendant is established.” Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010). 19 To continue with the false advertising example, a fail-safe class would be all persons who bought 20 a product that the defendant “falsely advertised.” See Brazil v. Dell, Inc., 585 F. Supp. 2d 1158 , 21 1167 (N.D.
discussed Cited as authority (rule) Mansor v. United States Citizenship and Immigration Services
W.D. Wash. · 2023 · confidence medium
Fail-Safe Class 10 Defendants’ primary argument against certifying this class is that it will create an 11 impermissible fail-safe class, or one “that is defined to include only those individuals 12 who were injured by the allegedly unlawful conduct.” Olean Wholesale Grocery Coop., 13 Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 , 669 n.14 (9th Cir.), cert. denied sub nom. 14 StarKist Co. v. Olean Wholesale Grocery Coop., Inc., On Behalf of Itself & All Others 15 Similarly Situated, --U.S.--, 143 S. Ct. 424 (2022); (Resp. at 10-12).10 A fail-safe class is 16 “defined in a way that preclu…
discussed Cited as authority (rule) Edd King v. National General Insurance Company (2×) also: Cited "see"
N.D. Cal. · 2021 · confidence medium
MTS at 8. 1 defendant is established.” Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010). 2 When a class is defined to only include individuals who will prevail against a defendant, “obvious 3 problems” arise, including the inability to determine who should be sent a Class notice.
discussed Cited as authority (rule) Edwards v. Conn's, Inc.
D. Nev. · 2020 · confidence medium
And she argues that it is premature to rule on class definitions, she has not filed a 21 22 1 “The fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of 23 the defendant is established.” Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010). 1 motion for class certification, and if I find an error, she should be allowed to amend her proposed 2 class definitions rather than have them stricken. 3 Edwards propose two classes: 4 DNC Class: All persons in the U.S.…
discussed Cited as authority (rule) Jennifer Rennick v. NPAS Solutions, LLC
C.D. Cal. · 2020 · confidence medium
Cal. Sept. 30, 2013) (quoting Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010)). 1 in advance of a motion for class certification.” Cholakyan, 796 F. Supp. 2d at 1245 2 (collecting cases).
discussed Cited as authority (rule) Wakefield v. Visalus, Inc.
D. Or. · 2019 · confidence medium
A “fail-safe” class is “one that is defined so narrowly as to ‘preclude[] membership unless the liability of the defendant is established.” Torres, 835 F.3d at 1138 n.7 (quoting Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010)).
discussed Cited as authority (rule) Bacilio Ruiz Torres v. Mercer Canyons Inc.
9th Cir. · 2016 · confidence medium
Indeed, defining the class to include only those individuals who were "injured” by nondisclosure threatens to create a "fail safe” class, one that is defined so narrowly as to "preclude!] membership unless the liability of the defendant is established.” Kamar v. RadioShack Corp., 375 Fed.Appx. 734, 736 (9th Cir. 2010).
discussed Cited as authority (rule) Edwards v. Oportun, Inc.
N.D. Cal. · 2016 · confidence medium
Further, Defendant contends that the class is a “fail safe” class, which is impermissibly “defined in a way that precludes membership unless the liability of the defendant is established.” Kamar v. RadioShack Corp., 375 Fed.Appx. 734, 736 (9th Cir.2010).
cited Cited as authority (rule) Alhassid v. Bank of America, N.A.
S.D. Fla. · 2015 · confidence medium
Mar. 24, 2014) (quoting Kamar v. RadioShack Corp., 375 Fed.Appx. 734, 736 (9th Cir.2010) and citing Randleman v. Fidelity Nat’l Title Ins.
cited Cited as authority (rule) Pena v. Taylor Farms Pacific, Inc.
S.D. Cal. · 2015 · confidence medium
Kamar v. RadioShack Corp., 375 Fed.Appx. 734, 736 (9th Cir. 2010) (unpublished memorandum).
discussed Cited as authority (rule) Hernandez v. County of Monterey
N.D. Cal. · 2015 · confidence medium
Jan. 16, 2009) (defining a "fail-safe class” as (by the merits of [the plaintiffs] legal claims, and [is] therefore unascertainable prior to a finding of liability in the plaintiffs’ favor.’’); Kamar v. Radio Shack Corp., 375 Fed.Appx. 734, 735 (9th Cir. 2010). .
cited Cited "see" Costa v. Apple, Inc.
N.D. Cal. · 2023 · signal: see · confidence high
See Kamar, 11 375 Fed.
cited Cited "see" Kristeena Tinnin v. Sutter Valley Medical Foundation
E.D. Cal. · 2022 · signal: see · confidence high
See Kamar v. RadioShack Corp., 375 Fed.
discussed Cited "see" Goodrich v. Cross River Bank
N.D. Cal. · 2022 · signal: see · confidence high
See Kamar v. RadioShack 2 || Corp., 375 Fed.
discussed Cited "see, e.g." Spread Enterprises, Inc. v. First Data Merchant Services Corp.
E.D.N.Y · 2014 · signal: see also · confidence medium
In other words, “[i]n a fail-safe class, either the class members win or, by virtue of losing, they are not in the class, and therefore not bound by the judgment.” Id.; see also Kamar v. Radio Shack Corp., 375 Fed.Appx. 734, 736 (9th Cir.2010) (“The fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.”).
discussed Cited "see, e.g." Mazzei v. Money Store
S.D.N.Y. · 2012 · signal: see also · confidence medium
Co., 646 F.3d 347, 352 (6th Cir.2011); see also Kamar v. Radio Shack Corp., 375 Fed.Appx. 734, 736 (9th Cir.2010) (“The fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.”).
Retrieving the full opinion text from the archive…
Kamar
v.
RadioShack Corporation
09-55674.
Court of Appeals for the Ninth Circuit.
Apr 14, 2010.
375 F. App'x 734
” without any expressed limitation.
Unpublished

MEMORANDUM *

Spiro Kamar, James Mitchell, Ariann Partida, Terald Smith, Joevanny Solorio and Eric Valasco (collectively “Kamar”) brought this action against RadioShack Corporation as a class action. Kamar moved for certification of a class [1] and the district court issued an order granting that motion. RadioShack appealed. We affirm.

The district court certified the following class:

All California employees of defendant paid on an hourly basis as nonexempt employees for the period of March 2003 to the present who (a) were instructed to and attended a Saturday store meeting or district office meeting without receiving the full amount of mandated premium pay, or (b) worked a split shift schedule without receiving the full amount of mandated premium pay, or (c) fit into both (a) and (b).

RadioShack attacks the certification order on a number of grounds.

(1) RadioShack first asserts that the class designation is defective because it[*736] creates what is sometimes called a fail-safe class. We do not agree.

The fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established. When the class is so defined, once it is determined that a person, who is a possible class member, cannot prevail against the defendant, that member drops out of the class. That is palpably unfair to the defendant, and is also unmanageable — for example, to whom should the class notice be sent? See Fed.R.Civ.P.23(c)(2).

The district court did not create that problem here. Rather, as we see it, the designation made by the district court should be seen as a way of narrowing the class to employees within the reporting time and split-shift classifications, without actually distinguishing between those who may and those who may not ultimately turn out to be entitled to premium pay. So construed, the class action remains manageable because the definition is not a circular one that determines the scope of the class only once it is decided that a class member was actually wronged. Moreover, if a class member was not legally wronged, RadioShack will be protected against liability to that person. Thus, the district court did not legally err by defining the class as it did. If, as RadioShack suggests, that means that the class may include all, or almost all, retail employees in California, that itself is not fatal.

(2) RadioShack then asserts that, in effect, the district court was required to decide the common legal issues before it certified the class. Again, we disagree. A district court neither must, nor should, decide the merits of a dispute — legal or factual — before it grants class certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 782 (1974); United Steel, Paper & Forestry, Rubber, Mfg. Energy, Al lied Indus. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 808-09 (9th Cir.2010); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983). That does not mean that the district court should decline to give any consideration to the law and the facts in reaching its certification decision; it cannot do that. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). However, the district court did not fall into error in that respect. That leads to RadioShack’s final attack on the certification order.

(3) RadioShack asserts that the district court erred when it determined that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). [2] When the district court exercises its discretion regarding certification [3] it must ask “whether [the] proposed [class is] sufficiently cohesive to warrant adjudication by representation,” [4] and in so doing must focus “on the relationship between the common[*737] and individual issues.” [5] That approach helps assure that proceedings by way of a class action will ‘“achieve judicial economy.’ ” Zinser, 253 F.3d at 1189. We have reviewed the record and the district court’s order, and it is apparent that the district court did engage in the required rigorous analysis expected of it [6] and did not abuse its discretion when it determined that the predominance test was met. [7]

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. See Fed.R.Civ.P. 23(a) & (b).

2

.When certification of a class is sought, all of the elements of Federal Rule of Civil Procedure 23(a) must be complied with, as must at least one of the provisions of Rule 23(b). See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.2001). On this appeal, however, only the predominance element is contested, except to the extent that the issues discussed in parts (1) and (2) of this disposition can be seen as affecting the other elements of Rule 23 also.

3

. See Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir.2001).

4

. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 2249, 138 L.Ed.2d 689 (1997); see also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.1998).

6

. In so doing, the district court did not fall into the error of placing undue weight on RadioShack's general policies. See Mevorah v. Wells Fargo Home Mortgage (In re Wells Fargo Home Mortgage Overtime Pay Litig.), 571 F.3d 953, 957-59 (9th Cir.2009).

7

. To the extent that RadioShack expresses a concern that the question of class designation is now set in stone, its concern is not well taken. The district court can revisit the order at any time before final judgment. See Fed. R.Civ.P. 23(c)(1)(C); Armstrong, 275 F.3d at 871 n. 28. In fact, the parties agreed that the district court should resolve many legal issues, which RadioShack now points to as a concern, so that the court could further refine ascertainment of the potential class. The district court agreed to do so, but has now stayed briefing and further consideration of the issues pending this appeal. That was pursuant to a stipulation by the parties.