Duane Morris Class Action Review - 2023 - Report - Page 361
to show that the question of whether a particular fax was solicited would require an
individualized inquiry.
Similarly, in Steven A. Conner DPM, P.C., et al. v. Fox Rehabilitation Services., P.C.,
2022 U.S. Dist. LEXIS 159945 (E.D. Penn. Sept. 6, 2022), the defendant successfully
demonstrated that a substantial portion of the proposed class consented to the
communications, and that individualized questions of who consented would
predominate. In Conner, the plaintiff was a private, podiatry practice and the defendant
was a private, healthcare company that provided various forms of physical and
occupational therapies to patients in their homes. Patients could connect with the
defendant through referrals from their medical providers, like the plaintiff. In turn, the
plaintiff alleged that the defendant violated the TCPA when it sent the plaintiff a series of
faxes, during the early months of COVID-19, to which it did not consent, and converted
the plaintiff’s toner and paper used to print those faxes. The plaintiff moved to certify a
class of “all persons and business entities sent one or more facsimiles on (1) March 27,
2020, (2) April 2, 2020, (3) April 16, 2020, (4) April 21, 2020, (5) May 14, 2020, (6) May
19, 2020, (7) June 3, 2020, or (8) June 16, 2020, identified as ‘successful’ transmissions
on the fax transmission detail reports from OpenFax, and stating [Defendant] was
‘HELPING FLATTEN THE CURVE WITH HOUSE CALLS’ through its trademarked
‘Geriatric House Calls’ therapy model.” Id. at *3. The defendant argued that the
plaintiff’s proposed class could not be certified because individual questions, such as
consent and the method of fax receipt, predominated over questions common to the
proposed class. In support, the defendant cited several recipients’ declarations that
stated they did not use traditional facsimile machines subject to the TCPA. The plaintiff
responded that the defendant’s supporting declarations only established “consent,” as
opposed to “express consent” because the recipients “provided consent for faxes ‘like’
the ones at issue” but not specifically the faxes at issue in this case. Id. at *14. The
court found that “[b]ecause Plaintiff contend[ed] it never consented to receive
Defendant’s faxes, but members of Plaintiff’s proposed class members declared
they did consent, individual questions of law predominate over common ones.” Id. at
*18. The court explained that, to determine the type of consent each individual class
member did or did not provide the defendant, assuming any was given at all (i.e.,
consent or express consent), would require individualized review including, but not
limited to (i) whether the defendant sought permission to send these faxes, (ii) what, if
anything, the defendant informed each class member about these faxes, (iii) how each
class member provided their consent, (iv) whether the specific fax or faxes each class
member received fit within the contours of any consent that member may have
provided, (v) and whether a class member invited the faxes in some other way than
through a request from the defendant to receive them. For these reasons, the court
found that the class could not be certified because individual questions would
predominate over questions common to the proposed class. Thus, the court denied the
plaintiff’s motion for class certification.
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Duane Morris Class Action Review – 2023
