6th Cir. Says Common Questions Predominated in TCPA Blast-Fax Class Action; Reverses District Court’s Denial of Class Cert.

In Bridging Communities, Inc. v. Gamble Plumbing and Heating, Inc., individually and as the representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. TOP FLITE FINANCIAL INCORPORATED, Defendant-Appellee., 2016 WL 7241401, at *4–5 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit found that common questions predominated in a TCPA blast-fax class action, and reversed the District Court’s denial of class cert.

Top Flite raised the possibility of consent to receive faxes and/or prior existing business relationships as a defense to liability under the TCPA before the district court. (R. 25, PageID 152.) Top Flite also argued that determining the presence or absence of consent for each class member would require individualized investigation, rendering class certification inappropriate. (See R. 53, PageID 912–15.) Bridging Communities and Gamble contended that the question of consent was subject to generalized proof because: (1) the challenged faxes were sent to a list obtained from InfoUSA; (2) applicable federal regulations require senders who “obtain facsimile number [s] from other sources” to “take reasonable steps to verify that the recipient agreed to make the number available for public distribution[,]” 47 C.F.R. § 64.1200(a)(4)(ii)(B); and (3) Caroline Abraham testified that B2B generally did not contact anyone on the InfoUSA list to inquire about consent prior to transmitting faxes. (See R. 47, PageID 481–82.) Bridging Communities and Gamble also pointed out that in response to discovery requests for any documents showing established business relationships with or prior consent from class members, Top Flite indicated that it had nothing to produce. (See id. at PageID 482.)  The district court agreed with Top Flite, holding that “[t]he factual core of this case is not whether Defendant sent facsimile transmissions but, rather, whether each of the individual class members solicited the facsimiles.” (R. 65, PageID 1355 (emphasis in original).) The district court discounted Abraham’s testimony about B2B’s general practices and concluded instead that “the possibility that some of [the class] members gave consent to Defendant and or InfoUSA prior to receiving the facsimiles” meant that “determining liability would require investigation of the factual circumstances of each person or business that received a facsimile transmission” advertising Top Flite. (Id. at PageID 1356, 1355.) On appeal, Bridging Communities and Gamble argue that the district court abused its discretion when it allowed the unsubstantiated possibility of individualized consent to defeat predominance. They further maintain that Top Flite’s defense of consent is subject to class-wide proof.  We have recognized repeatedly that “the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” Young, 693 F.3d at 544 (quoting Beattie, 511 F.3d at 564). Here, Bridging Communities and Gamble presented evidence suggesting a class-wide absence of consent—evidence that B2B failed to contact anyone on the list it purchased from InfoUSA to verify consent prior to faxing them advertisements. In response, Top Flite merely alleged that class members might have given consent in some other way. The district court adopted this idea, opining that B2B’s failure to obtain consent “does not foreclose the possibility that some of those [class] members gave consent to [Top Flite] and or InfoUSA[,]” even though Top Flite did not offer any information or evidence to support that theory. (R. 65, PageID 1356.)    We are unwilling to allow such “speculation and surmise to tip the decisional scales in a class certification ruling[,]” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000), particularly under the circumstances present here. Our precedent is clear that a possible defense, standing alone, does not automatically defeat predominance. See Young, 693 F.3d at 544; Beattie, 511 F.3d at 564; see also In re HCA Holdings, Inc., No. 14-0511, 2015 WL 10575861, at *2 (6th Cir. Feb. 26, 2015). Even where defendants point to some evidence that a defense will indeed apply to some class members, which is more than Top Flite did here, courts routinely grant certification because “Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.” Smilow v. Sw. Bell. Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003); see also Avio, Inc., 311 F.R.D. at 437–46. As the First Circuit has recognized, moreover, if evidence later shows that a “defense is likely to bar claims against at least some class members, then a court has available adequate procedural mechanisms. For example, it can place class members with potentially barred claims in a separate subclass, or exclude them from the class altogether.” Smilow, 323 F.3d at 39–40 (citations omitted).  Top Flite is correct that the Fifth Circuit has held that issues of consent may preclude class certification on predominance grounds in some TCPA cases. See Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 326–29 (5th Cir. 2008). In so doing, however, the Fifth Circuit recognized that in cases where, as here, a sender “obtained all of the fax recipients’ fax numbers from a single purveyor of such information[,]” there exists a “class-wide means of establishing the lack of consent based on arguably applicable federal regulations.” Id. at 327–328. The common question in such cases is “whether the inclusion of the recipients’ fax numbers in the purchased database indicated their consent to receive fax advertisements, and there [a]re therefore no questions of individual consent.” Id. at 328.  We hold that the mere mention of a defense is not enough to defeat the predominance requirement of Rule 23(b)(3). See Young, 693 F.3d at 544; Beattie, 511 F.3d at 564. Holding otherwise and allowing such speculation to dictate the outcome of a class-certification decision would afford litigants in future cases “wide latitude to inject frivolous issues to bolster or undermine a finding of predominance.” Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 Duke L.J. 1251, 1269 (2002). In light of the foregoing, particularly the class-wide evidence Bridging Communities and Gamble presented showing an absence of consent, we hold that speculation alone regarding individualized consent was insufficient to defeat plaintiffs’ showing of predominance under Rule 23(b)(3). The district court abused its discretion in holding otherwise in this case.