Predominance Dominance: Certification Denied in TCPA Fax Case Owing to Diverse Issues of Consent

food couple sweet married

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I’m at a wedding.

But real quick, did you see the class action denial in Khs Corp. v. Singer Fin. Corp. Case No. 16-55, 2018 U.S. Dist. LEXIS 143337 (E.D. Pa Aug. 23, 2018)? Its good stuff.

Fax TCPA case. Plaintiff sought certification claiming that faxes were sent without consent. Pretty similar to the nightmarish result in Physicians Healthsource, Inc. v. A-S Medication Solutions LLC but different result because court applies a more robust predominance test under rule 23(b)(3).

In Khs Corp. the Court viewed the predominance standard as “demanding” and requiring
“some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.” Khs Corp. at *8.  This means that “[w]ithout a showing by a plaintiff of how common proof can establish those specific issues-such as liability, affirmative defenses, or damages-they will inevitably overwhelm questions common to the class.” Id. at *8-9. Yep sounds right.

Hang on, here comes the bride.

Ok, I’m back. But I have to whisper.

So the court goes on to find that “a prediction of how issues will ‘play out’ makes clear that the individualized question of consent will defeat predominance of common issues because the ultimate question for each class member will be whether a given fax sent by SFC was solicited or unsolicited.” Id. at *9. This is so because the Defendant claimed to have obtained consent orally from each and every person on his fax list.

And although the Court in Physicians Healthcare had found that consent for informational faxes does not amount to consent for solicitation faxes, the Khs Corp. court saw no basis to certify a class built on such a subjective theory:

“KHS claims that even if Singer received consent to send “information” and not advertising. The problem for KHS, however, is that if a recipient voluntarily gives her fax number, she consents to receive material related to the reason she gave the number. Singer has alleged that he received fax numbers and consent from each class member both to receive “flyer[s],” and “information” on SFC. To determine whether the faxes relate to the reason that a class member gave her fax number, the Court, or a jury, would have to engage in an intensely fact specific inquiry-requiring precise analysis of the conversation as well as credibility determinations.”

Khs Corp. at *14-15 (Internal Quotes Omitted)

The Court in Khs Corp. nails it. This is exactly the way the predominance analysis is supposed to work and why TCPA cases are so rarely certifiable. See Gene And Gene LLC
v. BioPay LLC, 541 F.3d 318, 329 (5th Cir. 2008)(TCPA cases cannot be certified unless there is common proof on issue of consent.)

Ok I really have to go. Ribs are sore from the wife’s elbows. Have a great weekend TCPAland.

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