January 13, 2017

Junk Faxes Go to the Head of the Class (Action)

by Guest Blogger


In its latest "junk fax" case, the Sixth Circuit Court of Appeals reversed a district court's denial of class certification and dismissal of a lawsuit alleging that Top Flite Financial, Inc., a mortgage company, violated the Telephone Consumer Protection Act ("TCPA") by hiring a third party to send unsolicited fax advertisements on its behalf. See Bridging Communities, Inc. v. Top Flite Financial Incorporated, Case No. 15-1572, 2016 U.S. App. LEXIS 22297 (6th Cir. Dec. 15, 2016).

According to the complaint, Top Flite allegedly hired Business to Business Solutions ("B2B"), a well-known fax-broadcasting company, to send unsolicited fax advertisements to the plaintiffs and a class of similarly-situated parties without their consent or an established business relationship. The district court first denied class certification because individual questions of consent (a defense to the claims) precluded a finding of predominance under Fed. R. Civ. P. 23(b)(3). Then, after the plaintiffs failed to accept a Rule 68 offer of judgment from Top Flite, the district court dismissed the lawsuit as moot. The plaintiffs appealed both rulings.

Regarding predominance, the Sixth Circuit noted that "Rule 23(b) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class." Id. at *6 (quoting Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 1191 (2013) (emphasis added). In other words, even though individual proof may be involved, if the issues which are subject to generalized proof predominate, Rule 23(b)(3) will be satisfied. In the Court's view, Top Flite's speculation that some claimants might have given consent was insufficient to overcome the plaintiffs' evidence that B2B had not contacted any of the claimants to verify consent before sending faxes.

The Sixth Circuit also reversed the district court's mootness dismissal because the plaintiffs had failed to accept Top Flite's offers of judgment. Before the district court, Top Flite relied on the Sixth Circuit's opinion in O'Brien v. Ed Donnelly Enterprises, 575 F.3d 567 (6th Cir. 2009), for the proposition that unaccepted offers of judgment can moot a case and deprive a district court of subject matter jurisdiction. However, in between the time of the district court's ruling and the Sixth Circuit's review of the case, the Supreme Court ruled in Campell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that unaccepted offers of judgment do not moot a case. In light of Campbell-Ewald, the Sixth Circuit held that Top Flite's rejected offer of judgment did not moot the lawsuit.

The case is remanded to the district court.