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Recent First Circuit Opinion Addresses Strategies for Litigating Predominance in Class Action Litigation

On August 30, 2021, the U.S. Court of Appeals for the First Circuit issued a decision in Bais Yaakov of Spring Valley v. ACT, Inc. that addresses how plaintiffs can satisfy the predominance requirement in federal class actions. (The opinion (“Op.”) is available here). The decision held that on the facts of this case, the plaintiff could not establish predominance because individualized proof would be required on at least one element of the claim. The decision follows on the heels of an earlier decision where the First Circuit ruled against plaintiffs on a predominance dispute. In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018). These two cases create a high bar for plaintiffs to overcome defendants’ submission of declarations or other evidence substantiating an actual need to litigate an issue using individualized evidence.

Bais Yaakov arose under the Telephone Consumer Protection Act (TCPA). The TCPA prohibits sending advertisements by fax, unless the advertisement was either 1) sent pursuant to prior express permission or invitation of the recipient; or 2) the advertisement meets certain formatting requirements, including the presence of an opt-out notice in the advertisement. See 47 U.S.C. § 227(a)(5), 227(b)(1)(C). The statute provides for penalties of up to $1,500 per violation, which can quickly add up given the usually high volume of fax advertisements. 47 U.S.C. § 227(b)(3). Plaintiff, a small private high school, sent a request form to ACT in order to permit students’ ACT test scores to be reported to the school. Op. at 3. The school provided its fax number on the form and checked a box stating that the school wanted to receive SAT and ACT publications. Id.  Seven years later, ACT sent three faxes to Bais Yaakov. Id.  Two of the faxes promoted registration to take the ACT, while the third invited the school to sign up as an ACT test administration venue. Id. at 3-4. Bais Yaakov then brought a TCPA suit against ACT on behalf of a putative class of approximately 7,000 schools. Id. at 4. Bais Yaakov alleged that ACT sent approximately 28,000 faxes that transgressed the TCPA. Id.

The district court denied Bais Yaakov’s motion for class certification. Id. at 8. The court concluded that determining whether the faxes were sent with the prior express permission of the recipients would require individualized examination of the class members’ individual communications with ACT. Id. at 7. Thus, common issues would not predominate and the class could not be certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Op. at 7. The court reached this conclusion in large part based on declarations (submitted by ACT) from seventy-eight putative class members stating that they provided ACT with their fax numbers, that they received communications via fax that were integral to their relationship with ACT, and that they would have given permission to send such information via fax. Id. at 20-21.

Bais Yaakov appealed and the First Circuit affirmed the denial of class certification. The court held that the predominance inquiry turned on whether “the record reasonably shows that some putative class members” gave ACT permission to send the faxes and, if so, whether “there is a fair and efficient method for culling those consenting recipients from the class.” Id. at 16. The court emphasized the importance of the declarations from the seventy-eight putative class members, which highlighted the differing positions of different putative class members regarding whether they had given ACT permission to send faxes. Id. at 20-21. The court concluded that, based on this evidence, the district court did not abuse its discretion in holding that there would be putative class members that consented to the faxes. Id. at 24. The First Circuit further held that Bais Yaakov raised no argument that there was a feasible way to cull those members from the class. Id. at 24-25.

In a concurring opinion, Circuit Judge Barron addressed the implications of the court’s decision on plaintiffs’ ability to satisfy the predominance requirement more generally. In light of the First Circuit’s decision and its earlier, similar decision in In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018), some commentators have questioned whether plaintiffs could ever satisfy the predominance requirement if the defendant merely contends that it needs to challenge class members’ testimony on an individual basis. Judge Barron’s concurrence pushes back against that argument and identifies potential situations where he might hold that a plaintiff can establish predominance even though the defendant contends that individual proof is required. He contends that Asacol and Bais Yaakov do not establish a per se rule that predominance cannot be satisfied whenever a defendant announces an intent to contest class members’ testimony individually. Op. at 40. Rather, in Judge Barron’s view, the court must make a “predictive assessment” of how the case would actually be litigated. Id. at 41. In making that assessment, the concurrence says that the court must look at whether such litigation would actually result in inefficiency (such as a large number of class members needing to testify about individual issues) or unfairness (such as infringing defendants’ rights to present individualized evidence in order to avoid inefficiency). Id.

After Asacol, many commentators viewed the First Circuit as a difficult place for class action plaintiffs to win class certification. The Bais Yaakov decision will likely reinforce that view. ACT effectively used declarations from putative class members to establish that different class members were differently situated regarding an element of the claim and to illustrate that individualized proof would be required on that element. By observing that courts should not just rest on defendants’ word that individualized issues defeat predominance, the concurring opinion further highlights how important it is for defendants to supplement their class certification evidence with declarations or other supporting evidence, where appropriate. Whether and if plaintiffs can successfully rebut an argument against certification that is supported with such evidence remains to be seen in future cases. But the First Circuit’s decisions so far suggest that where defendants’ evidence demonstrates a real need for individualized assessments, the predominance standard is difficult for class action plaintiffs to satisfy.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XI, Number 267
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About this Author

Kevin Daly Complex Commercial Litigation Attorney
Counsel

Kevin P. Daly focuses his practice on complex commercial litigation and trade compliance issues. He is a member of Robinson+Cole's Business Litigation Group and Manufacturing Industry Team.

Litigation

Kevin represents a variety of clients, including manufacturers, insurance companies, and other businesses, in complex litigation. He has represented clients in class actions (including insurance class actions, consumer class actions, and class actions related to the Telephone Consumer Protection Act), and product liability actions. He represents businesses in...

860.275.8368
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