True Health Chiropractic, Inc. v. McKesson Corp., No. 16-17123 (9th Cir. 2018)
Annotate this CaseThe district court denied class certification to a class of plaintiffs who allegedly received unsolicited faxed advertisements from McKesson between September 2009 and May 2010, in violation of the Telephone Consumer Protection Act of 1991. The Ninth Circuit affirmed the district court's denial of class certification with respect to a possible subclass of the putative class members with the fifty-five unique fax numbers in Exhibit C; reversed the district court's holding that the other possible subclasses cannot satisfy the predominance requirement of Rule 23(b)(3); held that the subclass of putative class members with 9,223 unique fax numbers that would be created by taking out of Exhibit A the putative class members listed in Exhibits B and C would satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3); remanded for a determination by the district court whether the claims and defenses applicable to some or all of the class of putative class members with 2,701 unique fax numbers listed in Exhibit B would satisfy the predominance requirement of Rule 23(b)(3); and remanded to allow the district court to address the requirements of Rule 23(a).
Court Description: Telephone Consumer Protection Act / Class. Certification The panel affirmed in part and reversed in part the district court’s denial of class certification in an action under the Telephone Consumer Protection Act. Appellants sought to represent a class of plaintiffs who allegedly received unsolicited faxed advertisements from defendants in violation of the TCPA. The district court denied class certification on the ground that under Fed. R. Civ. P. 23(b)(3), individual issues related to affirmative defenses would predominate over issues common to the class. These “consent defenses” alleged that putative class members in various ways gave defendants “prior express invitation or permission” to send the faxes. The panel concluded that the district court did not impose an “ascertainability” or administrative feasibility requirement for class certification. Agreeing with the Sixth Circuit, the panel held that there is no requirement that all faxes, whether consented or not, must contain an “opt-out” notice because the FCC’s Solicited Fax Rule has been held invalid by the D.C. Circuit. The panel nonetheless concluded that the district court erred in part in holding that appellants’ proposed class or subclasses failed to satisfy the predominance requirement of TRUE HEALTH CHIROPRACTIC V. MCKESSON 3 Rule 23(b)(3). The panel held that in light of Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (holding that “express consent” is an affirmative defense to a claim brought under 47 U.S.C. § 227(b)(1)(A), a provision of the TCPA dealing with unsolicited telephone calls), “prior express invitation or permission” under § 227(b)(1)(C) is an affirmative defense on which the defendant bears the burden of proof. The panel affirmed the district court’s denial of class certification with respect to one possible subclass and reversed the district court’s holding that other possible subclasses could not satisfy the predominance requirement. The panel held that one subclass would satisfy predominance, and it remanded for a determination whether another subclass would also satisfy the requirement. The panel also remanded to allow the district court to address the requirements of Rule 23(a).
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