Duane Morris Class Action Review - 2023 - Report - Page 360
send them “product samples,” and asked recipients to “verify [their] address and
confirmation for samples” by filling in their contact information and faxing the form back
to the company. Id. at *2. It also invited recipients to opt out of future faxes by checking
a “remove my name” box and returning the fax. Id. The plaintiff, a physician, received
the P3990 fax and initiated the lawsuit the next month. The plaintiff alleged that the
P3990 Fax was an unsolicited advertisement because the defendant did not obtain her
prior express invitation or permission before sending it, and considered an
advertisement because the defendant directly sold and profited from the products
mentioned in the P3990 Fax. The plaintiff asserted that sending the unsolicited
advertisement was in violation of the TCPA, as amended by the Junk Prevention Act of
2005, 47 U.S.C. § 227. The plaintiff sought to certify a class of “[a]ll persons/entities
who successfully received the P3990 Fax on August 24, 2016 or August 25, 2016 and
have not signed a . . . Declaration.” Id. at *3-4. In opposing class certification, the
defendant argued that the plaintiff failed to establish the predominance required by Rule
23(b)(3) because many of the putative class members consented to receiving faxes
similar to and including the P3990 Fax. The court agreed with the defendant and denied
the plaintiff’s motion for class certification. Significantly, the court reasoned that the
“defendant’s bare assertion that some of the putative class members may have
consented does not preclude class certification. But if the defendant is able to offer
some evidence supporting a consent defense, especially if the defendant can do so as
to a significant number of putative class members, and the plaintiff fails to offer a viable
class-wide mechanism for resolving the issue, that can preclude certification.” Id. at *17.
The defendant offered five methods by which it received prior express invitation or
permission from recipients before sending the P3990 Fax. Specifically, the defendant
offered unrebutted evidence showing it received consent from: (1) “hundreds of
professionals known to its founders;” (2) “in-person sales visits to doctors’ offices;” (3)
“in-person interactions at medical conventions;” (4) “direct inquiries from class
members;” and (5) “return faxes” sent by various physicians in response to product
sample offers. Id. at *18. The court found that the defendant produced sufficient
evidence to conclude that it was “at least likely that the consent issue here will be
individualized.” Id. at *26. The court explained that the defendant “offered essentially
unrebutted testimony that it grew its list organically based on individualized interactions
with potential clients. As a factual matter, that creates almost a sort of presumption that
the consent issue will be individualized.” Id. The court held that, because the plaintiff
offered no evidence disputing the defendant’s testimony, it could conclude that
“individualized factual determinations about if, when, and how certain putative class
members (i.e., fax recipients) consented would likely become the “driver” of this
litigation.” Id. Accordingly, the court found that the plaintiff failed to satisfy the
requirement of predominance. For these reasons, the court denied the plaintiff’s motion
for class certification.
The Seventh Circuit addressed a similar argument this past year in Gorss Motels, Inc.,
et al. v. Brigadoon Fitness, Inc., 29 F.4th 839 (7th Cir. 2022). In affirming the district
court’s denial of class certification, the Seventh Circuit explained that the plaintiff had
failed to meet its burden of demonstrating that common issues of fact predominated.
The Seventh Circuit noted that the defendant had demonstrated that it had a large
variety of relationships and contacts with the recipients of the faxes, which was enough
359
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
