December 6, 2021

Volume XI, Number 340

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December 03, 2021

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LONG WAY TO GO FOR A GOOSE EGG: 8 Years and 100 Declarations Later, Plaintiffs See TCPA Fax Case Decertified

I often marvel that Plaintiff’s lawyers are commonly granted loadstar multipliers in seeking attorney’s fees based upon the complexity of a case.

I mean, sure, the work I did was only worth $_____ on an hourly basis, but because I took a risk I should get 3 x $______.

Headscratcher.

Then again, cases like True Health Chiropractic Inc. v. McKesson Corp., Case No. 13-cv-02219-HSG, 2021 U.S. Dist. LEXIS 199266 (N.D. Cal. October 15, 2021) demonstrate that it can be hard out there for class counsel.

In True Health the Defendant allegedly sent a bunch of faxes without consent. Pretty basic mistake. Since there was no consent the Court certified the case back in 2019. There were at least 6,000 class members, but the total number of faxes is unclear to me. But there was at least $9MM theoretically at issue here, and probably a bunch more.

The case was certified in August, 2019 and–wouldn’t ya know it–the FCC issued its big Amerifactors ruling just three months later.

In Amerifactors the Commission determined that the definition of fax machine under the TCPA did not include computer devices that received pdf images of transmitted faxes. And that makes good sense.

Although Amerifactors seemed to destroy certification in True Health–the individualized issues needed to determine whether a fax was received on a physical machine outweigh any individualized issues– the True Health court gave class counsel a chance to save the case. If class counsel could return with proof of how class members actually received the faxes at issue the case could proceed.

Remarkably class counsel went out and obtained declarations from over 100 telephone carriers. What a feat!

But, unfortunately, for the Plaintiffs the declarations mostly said that identifying how class members received the faxes was impossible.

Still, Plaintiffs asked the Court to infer that all of the faxes were received on physical machines because–according to their expert–that’s pretty much all people used during the class period. The Court was unimpressed:

“Far from presenting class-wide proof that would also be acceptable to prove an individual claim, Plaintiffs seek to transform the absence of uniform proof, cobbled together from a large number of disparate declarations, into a generalization they claim applies to each class member. But in an individual action, a plaintiff clearly would not be able to prove her case by saying, “Even though I personally received this fax via an online fax service, most people didn’t, according to Plaintiffs’ expert in the True Health case.”… The idea that Plaintiffs’ expert’s opinions about probability can constitute the required class-wide proof is not supported by Tyson or any other authority the Court has found.”

And with that, the Court decertified the class.

So eight years of hard work and 100 declarations later, the Plaintiffs end up with nothing but an individual claim for a handful of faxes.

Ouch.

Then again, this case isn’t over. In the Court’s words:

In the Court’s view, whether Amerifactors in fact controls here is determinative of the viability of this case as a class action. Plaintiffs can and no doubt will argue on appeal that Amerifactors is not binding, and the Court and the parties will get critical guidance from any ruling by the Ninth Circuit on that issue.

There is a certain madness that goes along with litigating a case for eight years, seemingly losing, and then deciding to still pursue the case on appeal. But the Court seems to think the Anderson & Wanca crowd are that kind of crazy (and I tend to agree).

I wonder what multiplier they’ll see if they eventually pull this off?

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 298
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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