Outside of the fax context, the chances of certifying a TCPA case  have turned almost exclusively on whether class member phone numbers all derived from a “single source” or from multiple different sources. This fact seems to make all of the difference in TCPA cases because if numbers come from multiple sources then the issue of “consent” will presumably not be uniform across the class–the circumstances under which each number was provided will bear on the extent and scope of consent. Whereas if the numbers come from a single source–such as a lead list–Courts will often find that consent is uniform across the entire TCPA class and certify the case.

This elegant–but largely unwritten–rule has never seemed to apply to TCPA fax cases, however. For whatever reason junk fax TCPA cases have historically been certified, or deemed uncertifiable on ascertainability grounds, rather than with any meaningful focus on consent. With the impact of Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017)–stripping the FCC of its presumed power to regulate regulated faxes–hitting home, however, junk fax TCPA certification decisions are slowly starting to align with the broader TCPA certification framework focused on consent, with the source of numbers serving as the critical factual predicate.

Take Sawyer v. Sharonville Family Medicine, Case No. 1:16-cv-550, 2018 WL 4214386 (S.D. Oh. Sept. 5, 2018), for example. There, in affirming a magistrate judge’s denial of certification over the objections of Plaintiff, the district court judge derived a rule from recent Sixth Circuit precedent that looks very much like the standard in “ordinary” non junk-fax TCPA cases. Specifically, it read the Sixth Circuit’s ruling in Bridging Communities., Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2012) as authorizing certification where a defendant showed nothing more than the mere possibility that consent had been obtained to fax class members–a narrow read indeed– but read Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 466 (6th Cir. 2017) more broadly as authorizing denial of certification anytime a defendant presented “‘actual evidence of consent…which required the need for individualized inquiries in order to distinguish between solicited and unsolicited’ faxes—predominance had not been established and class certification was properly denied.” See Sawyer at * 3-4. Hmmmm.

Even more compellingly, the Sawyer court looked at the source of each fax number in assessing consent–just as courts commonly do in telephone call cases.  Specifically, Sawyer credits the Defendant’s evidence that it “‘slowly built a collection of fax numbers of potential customers’ through sales team members who attend trade shows, collect business cards, arrange meetings, scour the internet for publicly available
contact information, and contact physicians and surgical centers to gauge interest in KRS products.'” See Sawyer at *4.  In other words, the Court is looking at the multiple sources of the numbers as indicative of differences in the consent showing necessitated to prove a TCPA violation as to each class member. Putting a fine point on the matter, the Court notes that while available data did “not track individual conversations with people” the Defendant had demonstrated that it “quite often” asked class members if they’d agree to receive marketing information from the Defendant. Id.  The court holds that certification denial was proper because:

“KRS did not obtain the fax numbers in a single generalized way. Rather, KRS has offered evidence that every fax number on the list to receive the Infusion Kit Fax granted permission to receive it.”

Sawyer at *4.

Notably, Sawyer is not alone amongst recent certification denial decisions in the TCPA fax context. As I reported from a wedding a few weeks back, the Court in Khs Corp. v. Singer Fin. Corp. Case No. 16-55, 2018 U.S. Dist. LEXIS 143337 (E.D. Pa Aug. 23, 2018) applied a similar analysis, crediting the Defendant’s evidence that it cobbled its fax list together overtime from numerous different sources and soliciting individualized consent to send each fax.  The Khs Corp court had little trouble denying certification in that case because “[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.

If Sawyer and Khs Corp represent the “new school” philosophy on TCPA fax case certification analysis, surely  Physicians Healthsource, Inc. v. A-S Medication Solutions LLC, Case No. 12 c 5105, 2018 WL 3993409 (N.D. Ill. Aug. 21, 2018)  is a remnant of the old guard. There a court rejected Defendant’s evidence of consent obtained from different individuals over time deeming it per se insufficient across the entire class despite differences in when and how numbers were obtained and–crucially– differences in what each fax recipient was told when the number was provided.  Such a case would never have been certified in the telephone context and, hopefully, such “junkfax specials” now fall quickly out of vogue in favor of the better reasoned approach taken in cases like Sawyer.