In Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc., 2017 WL 4339788, at *8–9 (N.D.Ill., 2017), Judge Lee rejected the defendant’s argument that mini-trials on the issue of consent meant that a class action was not the superior means of adjudicating a TCPA blast-fax class action.  Judge Lee found that the defendant did not make a prima facie showing that any of the class members consented, so mini-trials on consent would not be required.
In support of this argument, Defendants assert that the Seventh Circuit’s holding in CE Design effectively prohibits TCPA class actions where a Defendant places consent in issue. According to Defendants, the consent issue “must be treated and resolved on a case-by-case basis as instructed by the Seventh Circuit, rendering class treatment impossible.” Defs.’ Resp. at 9. Defendants rely on the Seventh Circuit’s statement in CE Design that “it [is] appropriate to treat the issue of consent in any complaint regarding unsolicited facsimile advertisements on a case-by-case basis.” Id.; CE Design, 637 F.3d at 726–27. Defendants misread CE Design by equating “case-by-case basis” with “plaintiff-by-plaintiff basis.” The Seventh Circuit’s admonition, id., was to make a fact-specific inquiry in each TCPA fax case as to whether recipients granted consent. Here, the Court has evaluated Defendants’ express consent arguments within the context of the class certification record, and it has found the arguments lack viability.  In this case, Plaintiff has met its burden of demonstrating that common questions predominate over individualized issues as to the rest of the class. Each of the class members’ claims arises under the TCPA, Defendants sent all class members the same form by fax, and there appear to be no viable individualized defenses based on the record at this stage. See Zeidel v. A&M (2015) LLC, 2017 WL 1178150, at *5 (N.D. Ill. Mar. 30, 2017) (finding predominance requirement met in TCPA case where there were no viable individualized consent defenses); Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 253–53 (N.D. Ill. 2014) (same); Mohamed v. Am. Motor Co., LLC, 320 F.R.D. 301, 313–14 (S.D. Fla. 2017) (same); Avio v. Alfoccino, Inc., 311 F.R.D. 434, 445–46 (E.D. Mich. 2015) (same); Manno, 289 F.R.D. 674, 689–90 (S.D. Fla. 2013) (same); Kristensen v. Credit Payment Serv., 12 F.Supp.3d 1292, 1306–07 (D. Nev. 2014) (finding lack of evidence of express consent in TCPA case means that “courts should ignore a defendant’s argument that proving consent necessitates individualized inquiries” (citing Meyer, 707 F.3d at 1042–43)). Moreover, once it is determined whether Defendants violated the TCPA, calculating individual damages will be a simple matter of tallying the number of unsolicited advertisements class members received by fax and computing statutory damages under 47 U.S.C. § 227(b)(3). See, e.g., Birchmeier, 302 F.R.D. at 255. Additionally, determining whether treble damages are available based on a finding that Defendants willfully or knowingly violated the TCPA, § 227(b)(C), is likely, in this case, to be resolved at the class level. For these reasons, the Court finds that Plaintiffs have satisfied the Rule 23(b)(3) requirement of predominance.