March 8, 2021

Volume XI, Number 67


March 05, 2021

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District Court Denies Class Certification Due to Individualized Issues of Consent

A federal district court recently rejected a plaintiff’s bid at class certification in a TCPA case. See Bais Yaakov of Spring Valley v. ACT, Inc., No. CV 12-40088-TSH, 2018 WL 5281746 (D. Mass. Oct. 24, 2018) (available here). The decision provides a useful illustration of how individualized issues of consent may defeat a plaintiff’s attempt to show that common questions “predominate,” as required by Rule 23(b)(3).

Plaintiff, a private high school and frequent TCPA plaintiff, alleged that it received three fax advertisements from the company that administers the ACT college admissions test at high schools throughout the country. Plaintiff claimed that it did not give “prior express invitation or permission” to receive these faxes, and, further, that they did not contain an opt-out provision. Plaintiff sought to certify a nationwide class of those who were sent a fax advertisement from defendant without any opt-out notice.

The court denied plaintiff’s motion for class certification, finding the predominance requirement in Rule 23(b)(3) was dispositive. The court initially noted that consent is an affirmative defense, and, accordingly, defendant had the burden to prove that consent would present sufficient individual inquiries to render class certification inappropriate. The court then reviewed the evidence submitted by defendant. Defendant had admitted that it sent over 10,000 faxes similar to the ones plaintiff received. Plaintiff had originally alleged that defendant obtained these fax numbers from a directory of schools. But defendant submitted declaration testimony explaining that it had active, ongoing relationships with thousands of high schools around the country that had voluntarily provided their fax number to defendant, and that defendant’s records included a fax number for over 7,000 high schools that had either served as ACT test centers or provided their number in other contexts. Defendant further submitted declarations from 78 school officials, who explained that they periodically request and receive information from defendant via facsimile—but also via telephone, regular mail, and email.

The court found this evidence sufficient to preclude a finding of predominance. It reasoned that if the class were certified, the court “would have to parse through each unique relationship to filter out those members to whom Defendant is not liable.” The court noted that class members contact defendant by mail, phone, and email—in addition to fax—rendering consent “a highly individualized inquiry.”

While the factual circumstances and evidence in a given case will necessarily be unique, the court’s analysis here demonstrates how issues of consent may be sufficiently individualized such that class certification can be defeated for failure to satisfy predominance. To be sure, the evidence defendant submitted was robust, with no less than 78 third-party declarations offered in support. But the court was more focused on the nature of this evidence, not its quantity. A key component of the court’s decision was that class members provided consent through a variety of communication channels, thus leaving it too complex and unwieldly for the court to “parse through each unique relationship.” Suffice to say that any company that advertises via fax should consider the lessons of this case.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume VIII, Number 303



About this Author

Bradley Andreozzi, Litigation Attorney, Complex, Drinker Biddle Law Firm, Chicago

Bradley J. Andreozzi represents clients in complex high-stakes civil litigation, including class action trials and appeals. Brad has represented clients in virtually every federal appellate court, including the Supreme Court, and in many trial courts throughout the country.

Brad defends clients in class actions under various federal and state consumer protection laws, including the Telephone Consumer Protection Act (TCPA), the Fair and Accurate Credit Transaction Act (FACTA) and many state false advertising statutes. His...

(312) 569-1173
Matthew J. Adler, attorney, Drinker Bilddle, San Francisco, healthcare, telecommunications

Matthew J. Adler represents clients across a broad range of industries, including health care, retail and telecommunications. He focuses his practice on complex commercial disputes, multi-state consumer class actions and product liability litigation. Matt has litigated cases in state and federal court, at both the trial and appellate level, and he is particularly skilled in pre-trial motion practice.

Matthew is a regular on the firm's Associates Committee and a regular contributor to Drinker Biddle’s Telephone Consumer...