On September 5, Judge Dlott (Southern District of Ohio) denied plaintiff's motion for class certification in a case involving the "junk fax" provision of the Telephone Consumer Protection Act of 1991. Perhaps perplexed that such cases still arise, the district court explained that, "[a]lthough it seems odd that the problem persists in the electronic age, the 'junk fax' provision attempts to curb the inundation of unwanted faxes." In this case, there was no dispute that plaintiff received an unsolicited one-page fax from defendant in October 2015. There also was no dispute that defendant sent 34,773 faxes during a two-day period within which plaintiff received the unsolicited fax.
Therefore, plaintiff sought to represent a class comprised of all 34,773 recipients of those faxes. The district court denied certification, finding that "common questions of law or fact do not predominate over questions affecting only individual members." The district court emphasized that defendant did not obtain the fax numbers "in a single generalized way," such as from a third-party vendor. And, though plaintiff received the fax unsolicited and without consent, the district court determined that there was "a bona fide issue of consent as to 34,772 of the alleged 34,773 fax recipients." So the issue of permission would be individualized for each of the 34,772 other fax recipients.
Although this outcome may be straightforward enough, the order does address one argument that warrants further discussion. As background, the district court noted that plaintiff presented no evidence "indicating generalized lack of permission." The court explained that
[t]he plaintiffs in the cases upon which [Plaintiff] relies offered evidence that defendants purchased lists of fax numbers from third parties, and then began indiscriminately transmitting faxes to those numbers without regard for permission. In those cases, then, the permission issue determination begins with generalized proof as to how the fax senders came to have those fax numbers. In this case, no such generalized evidence was ever presented.
In the face of this criticism, plaintiff responded that defendant, not plaintiff, actually bears the burden of proof to establish permission as a defense. The district court rejected this argument, instead emphasizing that "[i]t is the party seeking class certification . . . that bears the burden of 'affirmatively demonstrat[ing]' compliance with Rule 23." "[Plaintiff] (as the party seeking class certification) bears the burden of demonstrating predominance. [Defendant] does not bear the burden of demonstrating a lack thereof."
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