A recent Seventh Circuit decision makes an important point about how the principle that a court generally need not resolve the merits to decide class certification is bilateral – it applies to both affirmative claims and defenses. The plaintiff argued that the district court erred in denying class certification because there was one key defense that was central to the case, and the defendant had not established that it had a viable defense to even a single class member’s claim. But that made no difference because the evidence showed that the process for resolving the defense would require individualized adjudication.

Gorss Motels, Inc. v. Brigadoon Fitness, Inc., No. 21-1358, — F.4th –, 2022 WL 872639 (7th Cir. Mar. 24, 2022), was brought under the Telephone Consumer Protection Act (TCPA), seeking to hold the defendant liable for sending unsolicited advertisements by fax. (One would think these cases would come to an end given that fax machines seem like ancient technology that is hardly ever used today. But these cases live on.) The key issue here, as in many TCPA cases, was consent—whether class members had provided prior express permission for the ads. The defendant or relevant third parties from which it obtained the fax numbers had different agreements with the class members who received the faxes, and some fax numbers were obtained through personal contact. The district court denied class certification because common issues of law or fact would not predominate over individual issues with respect to this key defense at the heart of the case.

On appeal, the plaintiff argued primarily that the defendant had failed to establish consent by even a single class member, pointing to a district court opinion in another case that had focused on whether there was permission given for the fax advertisements by a “significant percentage” of the class. The Seventh Circuit rejected that argument, explaining that “it is not the final merits of the permission inquiry that matter for Rule 23(b)(3) purposes; it is the method of determining the answer and not the answer itself that drives the predominance consideration.” Moreover, “[t]his analysis applies not only to the elements that plaintiffs must prove but also to affirmative defenses like prior express permission.” Regardless of whether the defendant could establish the merits of its defense, the district court reasonably concluded that it could not be resolved with “generalized proof.”