Bais Yaakov of Spring Valley v. ACT, Inc. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1537
BAIS YAAKOV OF SPRING VALLEY,
on behalf of itself and all others similarly situated,
Plaintiff, Appellant,
v.
ACT, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Aytan Y. Bellin, with whom Bellin & Associates LLC was on
brief, for appellant.
Robert A. Burgoyne, with whom Perkins Coie LLP, Robert L.
Leonard, and Doherty, Wallace, Pillsbury & Murphy, P.C., were on
brief, for appellee.
August 30, 2021
KAYATTA, Circuit Judge. ACT, Inc., is a non-profit
entity that develops and administers the ACT college admissions
test. Bais Yaakov of Spring Valley is a small private high school
to which ACT sent three one-page faxes in 2012. Bais Yaakov has
since pursued ACT with a zeal that would impress even Hugo's
Inspector Javert. On behalf of itself and a class of similarly
situated recipients of faxes from ACT, Bais Yaakov alleges that
the faxes were unsolicited advertisements sent in violation of the
Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C.
§ 227(b)(1)(C). Bais Yaakov seeks injunctive relief and statutory
damages in an amount ACT estimates to exceed $400,000,000.
After almost eight years of litigation -- including an
interlocutory appeal to this court, see Bais Yaakov of Spring
Valley v. ACT, Inc., 798 F.3d 46, 46 (1st Cir. 2015) -- the district
court entered judgment against Bais Yaakov. It found that class
certification was unwarranted and that Bais Yaakov's individual
claim was rendered moot by ACT's offer to pay the full amount of
that claim ($46,500) and its promise not to send further faxes to
Bais Yaakov. While we see no abuse of discretion in the denial of
class certification, we vacate the judgment because Bais Yaakov's
own claim for damages is not quite moot. Our reasoning follows.
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I.
In 2005, Bais Yaakov filled out a High School Code
Request Form, on which it provided its fax number. Students use
the High School Code number to have their ACT test scores reported
to their high school. On the form, Bais Yaakov checked a box
indicating that it wanted to administer certain standardized
tests, that it wanted to receive its students' test scores, and
that it wanted to receive SAT or ACT publications.
Seven years later, ACT sent three faxes to Bais Yaakov
over the course of three months. The first fax was a one-page
flyer stating in large bold letters, "Don't forget to register for
the ACT!" Underneath, the fax directed counseling staff to
"[r]emind" students of the next ACT test date, which it featured
prominently. It listed the registration deadlines for the test
date and advised that "[s]tudents can meet the . . . deadline by
registering on-line" at a specified ACT web address. In the top-
left corner, the fax presented the name "ACT" above the words
"advancing lives."
The second fax was identical to the first but with a
different test date and corresponding registration deadlines.
The third fax contained what appears to be an image of
a crowd cheering at a baseball game, with the words "Give Your
Students the Home-Field Advantage" superimposed on one side and
"ACT" on the other. The bottom of the image stated, "Become an
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ACT Test Center." Beneath the image was more text, which said,
among other things: "By offering the ACT at your high school you
provide your students with a competitive edge."; "Your school can
benefit too. Your school staff will be compensated for assuming
the roles of test supervisor, room supervisors, and proctors.";
and "The curriculum-based ACT is accepted by all 4-year colleges
and universities in the U.S." (emphasis omitted).
Bais Yaakov alleges that these three faxes are among
over 28,000 unlawfully faxed advertisements ACT sent to over 7,000
schools across the country between 2008 and 2012.
II.
A.
The TCPA prohibits sending advertisements to fax
machines, but with two principal exceptions: An advertisement may
be sent to a fax machine (1) if the person to whom it is sent has
given "prior express invitation or permission, in writing or
otherwise," 47 U.S.C. § 227(a)(5); or (2) if certain conditions
are satisfied, one of which requires the inclusion of an opt-out
notice on the fax, id. § 227(b)(1)(C). None of the faxes at issue
in this appeal contains an opt-out notice, so any that are
advertisements are unlawful if they were sent without prior express
invitation or permission.
By regulation, the Federal Communications Commission
(FCC) promulgated a substantial further limitation on sending
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advertisements by fax. In its so-called Opt-Out Regulation (also
referred to as the Solicited Fax Rule), the agency decreed that
even faxes sent with prior express invitation or permission must
contain an opt-out notice. See Rules & Regulations Implementing
the Telephone Consumer Protection Act of 1991; Junk Fax Prevention
Act of 2005, 71 Fed. Reg. 25,967, 25,971-72 (May 3, 2006) (formerly
codified at 47 C.F.R. § 64.1200(a)(4)(iv)); Bais Yaakov of Spring
Valley v. FCC, 852 F.3d 1078, 1080 (D.C. Cir. 2017) (Kavanaugh,
J.). ACT included no opt-out notice in any of its faxes, so if
the Opt-Out Regulation is valid, prior express invitation or
permission would be no defense. Instead, ACT's liability to any
recipient would turn entirely on whether the fax was an
advertisement.
The FCC defines the term "advertisement" for purposes of
the TCPA as "any material advertising the commercial availability
or quality of any property, goods, or services." 47 C.F.R.
§ 64.1200(f)(1); see also 47 U.S.C. § 227(a)(5) (using similar
language to define the term "unsolicited advertisement"). To
classify a communication as "advertising," the agency looks to the
communication's "primary purpose." In re Rules & Regulations
Implementing the Telephone Consumer Protection Act of 1991, 31 FCC
Rcd. 13,289, 13,291 (2016).
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B.
Bais Yaakov proposed two alternative classes, labeled
Class A and Class B. With Class A, Bais Yaakov sought to include
only recipients of "unsolicited" fax "advertisements" from ACT
containing no opt-out notice. With Class B, Bais Yaakov sought to
take advantage of the Opt-Out Regulation by broadening the class
to include recipients of any (even solicited) fax advertisements
from ACT that did not contain an opt-out notice as required by the
regulation.
With the parties' consent, the district court considered
first whether the Opt-Out Regulation was valid. In finding the
regulation to be invalid, the district court deemed binding a
decision to that effect by the Court of Appeals for the D.C.
Circuit. See Bais Yaakov of Spring Valley v. ACT, Inc., 328 F.R.D.
6, 10 (D. Mass. 2018) (citing Bais Yaakov, 852 F.3d at 1083).1
Having eliminated the Opt-Out Regulation as a tool for
establishing that every fax sent by ACT necessarily violated the
TCPA because ACT never included opt-out notices, the district court
turned its attention to the two issues raised by the TCPA's
1 Following the D.C. Circuit's ruling in Bais Yaakov, the
FCC eventually repealed the Opt-Out Regulation. See In re Rules
& Regulations Implementing the Telephone Consumer Protection Act
of 1991 Junk Fax Prevention Act of 2005 Petitions for
Reconsideration &/or Declaratory Ruling & Retroactive Waiver of 47
C.F.R. § 64.1200(a)(4)(iv) Regarding the Commission's Opt-Out
Notice Requirement for Faxes Sent with the Recipient's Prior
Express Permission, 35 FCC Rcd. 3079 (2020).
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exceptions from its prohibition on advertisements: Did the fax
contain an advertisement? And, if so, was it unsolicited (i.e.,
sent without prior express invitation or permission)? As to these
two issues, the district court took the standard Rule 23 approach:
It did not try to resolve the issues; rather, it properly tried to
decide whether Bais Yaakov had shown that resolution of the issues
could be accomplished on a common, class-wide basis. See Amgen
Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459–60 (2013)
("[T]he office of a Rule 23(b)(3) certification ruling is not to
adjudicate the case; rather it is to select the 'metho[d]' best
suited to adjudication of the controversy fairly and efficiently."
(second alteration in original)).
Looking first at the request to certify Class B, the
district court found that the invalidity of the Opt-Out Regulation
permitted a defense based on prior express permission. Assaying
the record, it then concluded that the need to adjudicate such a
defense would require an examination of the circumstances of each
class member and its communications with ACT to determine whether
that class member gave the requisite permission. And the need to
engage in such an individual inquiry meant that common issues would
not predominate as required in order to certify a class under
Rule 23(b)(3). See In re Asacol Antitrust Litig., 907 F.3d 42,
51–52 (1st Cir. 2018).
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With proposed Class A, Bais Yaakov sought to eliminate
this diversity among class members by limiting that class to
recipients of unsolicited faxes. The district court rejected this
attempt, finding that such a class would constitute a "fail-safe
class," i.e., a class that would bind class members only if they
won. See In re Nexium Antitrust Litig., 777 F.3d 9, 22 & n.19
(1st Cir. 2015). The district court then reasoned that if the
class were redefined to include recipients of any faxes from ACT,
it would suffer from the same defects as did Class B.
Having denied class certification, the district court
turned to Bais Yaakov's individual claim, on which the parties had
cross-moved for summary judgment. See Bais Yaakov of Spring Valley
v. ACT, Inc., 438 F. Supp. 3d 106, 108 (D. Mass. 2020). The
district court found that genuine disputes of material fact
-- namely, whether the three faxes identified by Bais Yaakov
qualified as advertisements and whether Bais Yaakov gave the
requisite permission -- precluded granting summary judgment for
either party. Id. at 109–10.
Later, ACT moved to dismiss Bais Yaakov's claim as moot.
According to the district court, by that point ACT had
"unconditionally tendered to [Bais Yaakov] all the statutory
damages that it [sought] on an individual basis." Bais Yaakov of
Spring Valley v. ACT, Inc., 461 F. Supp. 3d 3, 5 (D. Mass. 2020).
As to injunctive relief, ACT had not sent Bais Yaakov a fax since
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2012, and it had agreed not to send any faxes in the future in
violation of the TCPA. Id. at 4–5. The district court therefore
found the case moot and dismissed it. Id. at 5.
Bais Yaakov now appeals three rulings of the district
court: the holding that the Opt-Out Regulation is invalid, the
denial of class certification, and the dismissal of Bais Yaakov's
individual claim as moot. Bais Yaakov also asks us to review the
district court's denial of its motion for summary judgment, but
"[i]t is settled beyond peradventure that we lack jurisdiction to
hear appeals from the routine denial of summary judgment motions
on the merits." Morse v. Cloutier, 869 F.3d 16, 31 (1st Cir.
2017).
III.
We consider first the validity of the Opt-Out
Regulation. The parties argue at length over whether the decision
of the D.C. Circuit finding the regulation invalid binds this
court. We sidestep that issue because we find the D.C. Circuit's
decision -- whether binding or not -- correct, largely for the
reasons cogently set forth in that opinion. See Bais Yaakov, 852
F.3d at 1081–83; see also Physicians Healthsource, Inc. v.
Cephalon, Inc., 954 F.3d 615, 624 n.11 (3d Cir. 2020) (declining
to decide whether Bais Yaakov was binding on other circuits because
it agreed with the D.C. Circuit's reasoning); Sandusky Wellness
Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 467 &
- 9 -
n.1 (6th Cir. 2017) (treating the D.C. Circuit's ruling as binding
and separately agreeing with its reasoning); Nack v. Walburg, 715
F.3d 680, 682 (8th Cir. 2013) (noting that the FCC's authority to
promulgate the Opt-Out Regulation was "questionable").
When a court reviews an agency's construction of a
statute the agency administers, it conducts the familiar Chevron
two-step analysis:
First, always, is the question whether
Congress has directly spoken to the precise
question at issue. If the intent of Congress
is clear, that is the end of the matter; for
the court, as well as the agency, must give
effect to the unambiguously expressed intent
of Congress. . . . [I]f the statute is silent
or ambiguous with respect to the specific
issue, the question for the court is whether
the agency's answer is based on a permissible
construction of the statute.
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984) (footnote omitted). In Bais Yaakov, the D.C. Circuit
stopped after the first step. 852 F.3d at 1082. It held that
Congress had spoken directly about whether solicited fax
advertisements required opt-out notices (giving the FCC no
authority to issue a regulation on the matter), because the text
of the statute explicitly required opt-out notices only on
unsolicited fax advertisements and said nothing about requiring
such notices on solicited fax advertisements. See id.; 47 U.S.C.
§ 227(b)(2)(C)(iii) (prohibiting the sending via fax of "an
unsolicited advertisement, unless [among other things,] the
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unsolicited advertisement contains a notice meeting the
requirements under" another provision of the statute).
This reasoning makes good sense. The Supreme Court has
directed courts to apply "traditional tools of statutory
construction" in determining Congress's intent, Chevron, 467 U.S.
at 843 n.9, and it is a "settled rule that [courts] must, if
possible, construe a statute to give every word some operative
effect," Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157,
167 (2004). Moreover, in another subsection of the TCPA, Congress
placed requirements not just on unsolicited fax advertisements but
on "any communication" or "any message" sent via fax, 47 U.S.C.
§ 227(d)(1)(A), (B), demonstrating that when Congress wanted to
regulate faxes broadly, it used broad language to do so. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (explaining
the "general principle of statutory construction" that courts
presume Congress has acted "intentionally and purposely" when it
"includes particular language in one section of a statute but omits
it in another section of the same Act" (quoting Russello v. United
States, 464 U.S. 16, 23 (1983))). To read the statute as requiring
opt-out notices on solicited advertisements would be to remove the
word "unsolicited" from the provision discussing opt-out notices
or to ink in new provisions discussing solicited faxes.
The panel dissent from the D.C. Circuit's opinion in
Bais Yaakov criticized the majority for "fail[ing] to see the FCC's
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rationale for requiring that all fax ads include an informative
opt-out notice," which the agency had justified as an
interpretation of what it means for a fax to be sent with "prior
express invitation or permission" and therefore "solicited." 852
F.3d at 1083-84 (Pillard, J., dissenting). But, assuming that the
FCC might justifiably conclude that a fax is not solicited within
the meaning of the TCPA if the immediately preceding fax did not
include an opt-out mechanism, we do not see how the agency
reasonably could have concluded that a particular fax is
unsolicited unless it itself contains an opt-out notice. And,
even if the presence of an opt-out notice bears on whether the
subsequently received fax is solicited, the first fax received
after the recipient provides express permission cannot be
considered unsolicited under any plausible construction of the
term. Thus, as the FCC's rule applied to every fax sent, it
required an opt-out notice on at least some faxes that were
indisputably solicited and cannot be sustained as an
interpretation of what "solicited" means. Nor is it our role to
rewrite the regulation, even if one assumes that some alternative
version might suffice.
Bais Yaakov argues, however, that our precedent compels
a different understanding of whether the FCC has authority to
require opt-out notices on solicited fax advertisements. It
attempts to analogize to Alexander v. Treasurers of Boston
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University, 766 F.2d 630 (1st Cir. 1985), a case concerning the
so-called Solomon Amendment, which denied federal financial aid to
students who were required to register for the military draft but
failed to do so. Id. at 632. To implement the Amendment, the
Secretary of Education obviously needed to know whether each
financial aid applicant was required to register for the draft
and, if so, whether the applicant had in fact registered. So the
Secretary simply required each applicant as a condition of
receiving aid to certify either that he or she was registered or
was not required to register. Id. at 632–33. We found that
requiring applicants for aid to indicate that they were eligible
for that aid, with a "minimum of fuss and inconvenience," id. at
638, to be within the Secretary's authority to promulgate
regulations so as to do the job Congress assigned it. "[T]he
Secretary is simply saying that if an individual is unwilling to
tell the government that he or she fulfills the conditions for
aid, the government will not dispense it." Id. at 639.
The analogy to Alexander is unpersuasive. There, as
explained, we concluded that, where the Secretary was uncertain
whether a particular aid applicant was within the category of
people who might be denied aid under the statute, it could impose
a burden on that individual in the name of determining whether he
or she was in fact within that regulable category. Here, Bais
Yaakov asks us to hold something very different: that an agency
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can regulate a particular type of fax that it knows with certainty
is necessarily beyond its regulatory authority -- specifically, a
first fax that is plainly a solicited one -- in order to determine
whether a subsequently received fax does fall within the scope of
its authority. Bais Yaakov has not explained why we can or should
extend Alexander in that way. As such, the Opt-Out Regulation
finds no haven in Alexander. See Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 91-92 (2002).
IV.
A.
We turn our attention next to Bais Yaakov's appeal of
the district court's order denying class certification. In
briefing that challenge, the parties sensibly train their
arguments on the requirements of Rule 23(b)(3) of the Federal Rules
of Civil Procedure, which states in pertinent part as follows: "A
class action may be maintained if . . . the court finds that the
questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy."
In practice, litigation over these requirements often
reduces itself to a contest in which the party opposing
certification points to issues that it claims will need to be
decided separately for many class members. In turn, the putative
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class representative tries to carry the burden of convincing the
court either that prevailing on any of those issues is not
important to obtaining the remedy sought, that the issues can be
adjudicated in a manner that produces a common answer for all class
members, or that, to the extent individual issues remain, they can
be resolved in a manner that is both practicable and protective of
the parties' rights. See Asacol, 907 F.3d at 51 ("The aim of the
predominance inquiry is to test whether any dissimilarity among
the claims of class members can be dealt with in a manner that is
not 'inefficient or unfair.'" (quoting Amgen, Inc., 568 U.S. at
469)). "Inefficiency can be pictured as a line of thousands of
class members waiting their turn to offer testimony and evidence
on individual issues." Id. "Unfairness is equally well pictured
as an attempt to eliminate inefficiency by presuming to do away
with the rights a party would customarily have to raise plausible
individual challenges on those issues." Id. at 51–52.
True to form, ACT points to five issues allegedly central
to the relief sought that ACT claims cannot be resolved fairly
without an unmanageable need to consider the varying circumstances
of individual class members. These issues are: (1) Did the school
actually receive a fax from ACT? (2) Which fax did it receive?
(3) Was the fax an advertisement when viewed in the circumstances
of that recipient? (4) Does that school have the capacity to sue
or belong to a class? and (5) Did the recipient of the fax
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advertisement provide prior express permission for ACT to send the
advertisement by fax?
The district court sidestepped the first four of these
issues, training its attention on the fifth, the question of
permission: Did a recipient of a faxed advertisement give ACT
prior express permission to send the advertisement by fax? Under
Class A, this issue must be resolved to determine even if someone
is a class member (i.e., received an "unsolicited" fax). Under
Class B, this issue must be resolved to determine whether ACT has
a defense on the merits (i.e., that it received prior express
permission to send the fax). 47 U.S.C. § 227(a)(5), (b)(1)(C).
In either instance, the pivotal Rule 23 question is whether the
record reasonably shows that some putative class members may have
permitted ACT to send by fax what ACT faxed them and, if so,
whether there is a fair and efficient method for culling those
consenting recipients from the class. The district court found
that ACT presented sufficient evidence that the class likely
included members who invited ACT to send any materials by fax, and
that to identify those members the court would have to "parse
through each unique relationship" between every class member and
ACT; hence, certification of Class B was precluded for lack of
predominance.
As to Class A, the district court found that limiting
the definition of class members to those who received "unsolicited"
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faxes created a prohibited "fail-safe class," Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012),
and that, in any event, no jiggering with the class definition
would eliminate the need to decide the issue of permission (or
solicitation) for each putative class member. We now review that
decision, reversing only if we find an abuse of discretion
(including any error of law). Asacol, 907 F.3d at 51.
B.
In deciding whether individual issues predominate over
common questions, a court must not rely on mere speculation that
individual issues may arise. See Waste Mgmt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 298 (1st Cir. 2000); Bridging Cmtys. Inc.
v. Top Flite Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016)
(concluding that the district court abused its discretion in
finding that issues of consent predominated where the defendant
"did not offer any information or evidence to support that
theory"). Rather, it should consider only those issues that would
likely arise if an individual class member's claims were being
adjudicated on the merits. See Mowbray, 208 F.3d at 298; Madison
v. Chalmette Ref., L.L.C., 637 F.3d 551, 555 (5th Cir. 2011). In
so doing, a court considers "the probable course of the litigation"
so as to "formulate some prediction as to how specific issues will
play out in order to determine whether common or individual issues
predominate." Mowbray, 208 F.3d at 298. Even then, "the mere
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fact that . . . concerns may arise and may affect different class
members differently does not compel a finding that individual
issues predominate over common ones." Id. at 296. To the
contrary, "we have recognized that a class may be certified
notwithstanding the need to adjudicate individual issues so long
as the proposed adjudication will be both 'administratively
feasible' and 'protective of defendants' Seventh Amendment and due
process rights.'" Asacol, 907 F.3d at 52 (quoting Nexium, 777
F.3d at 19). So, here, we ask whether there is more than
speculation that individual issues of permission may arise and, if
so, whether Bais Yaakov has shown that those who gave ACT prior
express permission to send advertisements can be culled from the
class in a way that is administratively feasible and protective of
ACT's due process rights.
We start with the fact that some unknown number of the
putative class members sent a form to ACT providing a fax number
and requesting that ACT send them ACT "publications." Indeed,
Bais Yaakov itself both sent such a request and claims to be a
typical member of the classes it seeks to represent. See Fed. R.
Civ. P. 23(a)(3). Further, according to the declaration of an ACT
official, class members routinely provided ACT with their fax
number when inquiring about becoming a test center, requesting a
High School Code number, seeking information about the dates the
test will be administered, or asking for copies of publications.
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At least two of the three faxed documents to which Bais Yaakov
points as advertisements are notices of the exam dates and sign-
up deadlines -- i.e., just the sort of information that a school
asking for ACT publications would likely expect to receive by way
of the fax number it supplied when asking for the documents. The
third document, in turn, concerned the opportunity to administer
ACT exams. And because the typical class member (e.g., Bais
Yaakov) registered interest in giving such exams, one can easily
see how a request by that school to receive ACT publications would
cover such a document.
Nevertheless, as Bais Yaakov points out, the TCPA
requires "express permission." "Express permission" means
"[p]ermission that is clearly and unmistakably granted by actions
or words, oral or written." Permission, Black's Law Dictionary
(11th ed. 2019); cf. id. (defining "implied permission" as
"permission that is inferred from words or actions"). Furthermore,
FCC rules (unchallenged by either side) provide that in gauging
whether express permission was provided, we consider the
understanding of the recipient. In re Rules & Regulations
Implementing the Telephone Consumer Protection Act of 1991, 18 FCC
Rcd. 14,014, 14,129 (2003) ("Express permission to receive a faxed
ad requires that the consumer understand that by providing a fax
number, he or she is agreeing to receive faxed advertisements.").
So we do not reject the possibility that, notwithstanding the
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strong inference to be drawn from supplying a fax number while
requesting a publication, any given school may not have understood
its communications to invite ACT to send by fax that which it sent.
There is evidence, furthermore, that Bais Yaakov itself did not
understand its request for publications to convey perpetual
permission for ACT to send Bais Yaakov any advertisements. After
all, Bais Yaakov objected when it received the faxed publications
from ACT. And Bais Yaakov had no longstanding relationship with
ACT that might have lent further support to the notion that it
received by fax what it clearly asked to receive by fax. To the
contrary, the record as described by the parties paints a picture
of faxes sent to Bais Yaakov out-of-the-blue after years of no
contact.
There is evidence, though, that other members of the
putative class did not share Bais Yaakov's understanding
concerning the express requests that they receive ACT
publications. Indeed, ACT presented concrete examples of schools
that did not share Bais Yaakov's understanding. These examples
took the form of declarations from representatives of seventy-
eight schools with whom ACT corresponded. The declarants confirmed
that their schools provided ACT with fax numbers, and that they
frequently requested and received publications from ACT by fax.
When shown the three faxed ACT publications alleged by Bais Yaakov
to be advertisements, they replied that the information contained
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in the publications was "integral to" the school's ongoing
interactions with ACT, and that "ACT would have had permission
from the declarant or other school personnel" to send "these types
of informational communications using any available type of
communication, including facsimile."
Bais Yaakov makes no argument that the concrete examples
offered by ACT did not exemplify a larger subset of similar class
members that could only be identified were one to parse through
the circumstances of each school in the putative class. The fact
that many schools expressly asked when giving their fax numbers to
receive ACT publications likely suggests why Bais Yaakov makes no
argument that ACT's examples constitute just "a few unusual class
members, who can be picked off by the defendant." Asacol, 907
F.3d at 57 (citing Halliburton v. Erica P. Jong Fund, Inc., 573
U.S. 258, 276 (2014).
Rather, Bais Yaakov argues that ACT would have no
plausible defense of consent even in the circumstances presented
by the proffered examples. To support that argument, Bais Yaakov
points out that the key sentence concerning permission to send the
faxes employs the conditional "would have" formulation, rather
than stating that ACT did in fact have permission to send the type
of information contained in the faxes appended to the complaint.
Certainly the syntax could have been clearer. But given the prior
communication providing a fax number and asking to receive ACT
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publications, we think that a factfinder could reasonably read the
declarations as reflecting a lack of memory about whether the faxes
were received, not a doubt about whether they were invited if
received. A prior paragraph in each declaration explains that
the declarant has been told that ACT might have sent to the
recipient the three faxes appended to Bais Yaakov's complaint.
Rather than claiming a rather remarkable memory about exactly what
was received years ago, each declarant simply points to the faxes
appended to Bais Yaakov's complaint and confirms that those faxes
were the type of publications the school was requesting to receive
by fax, and that ACT "would have had permission" to send them. In
short, a factfinder could reasonably read the declarations as
conveying the point that "I do not recall if ACT sent these
specific faxes, but if it did, it would have had my permission to
do so."
Bais Yaakov argues that the Seventh Circuit concluded
otherwise in construing a recipient's declaration that the
recipient "would have given" consent. Physicians Healthsource,
Inc. v. A-S Medication Sols., LLC, 950 F.3d 959, 966 (7th Cir.
2020) (emphasis omitted). In so holding, it appears that the
Seventh Circuit read the condition implied by that statement as
"if asked, I would have given consent (but I was never asked)."
While it may have been reasonable in the context of that case to
read the statements as indicating that the recipients never gave
- 22 -
permission at all, here the context for at least some class members
is markedly different.
Many schools were obviously trying to assist their
students in taking the ACT test and, in many cases, in serving as
test centers. As the schools' representatives explain, they
therefore wanted information about "the nature of the test, how
scores are used, how students can prepare for the test, test
registration deadlines, and related topics." In this context, a
factfinder could determine that the request for ACT "publications"
was clearly understood by the school to be a request for notice of
exam dates, deadlines for sign-ups, and -- in the case of test
centers -- opportunities to give exams. This possibility finds
reinforcement in some instances where a school, unlike Bais Yaakov,
repeatedly requested information year in and year out. As best
the parties' briefs reveal, Bais Yaakov was the only one of out of
thousands of recipients that complained about receiving faxes from
ACT. Silence is not express permission. But widespread and
prolonged silence of this type strongly suggests that other
recipients were more like ACT's examples than they were like Bais
Yaakov.
Bais Yaakov points out (correctly) that the TCPA
requires permission to send advertisements, not just faxes. To
leverage that point, Bais Yaakov argues that the three subject
faxes were advertisements. The declarations, though, deflect the
- 23 -
thrust of this argument because they expressly refer to the
specific documents appended to the complaint. In short, even if
we assume that these documents are advertisements, ACT would not
incur liability if in the context of a particular relationship a
request for ACT publications was clearly understood as an
invitation to fax what was faxed. See Gorss Motels, Inc. v.
Safemark Sys., LP, 931 F.3d 1094, 1100 (11th Cir. 2019) ("Although
express permission requires a 'clear[] and unmistakabl[e]
communicat[ion],' it does not require that a recipient state
specifically that his permission includes faxed advertisements.").
On this record, we see no abuse of discretion in the
district court's finding that there were, among the thousands of
yet-to-be-canvassed putative class members, schools that could be
found by the factfinder to have given the requisite permission.
So that left a problem: How could one identify and cull out those
who did give express permission to send what was sent?
Bais Yaakov has made no argument that the court could
cull from the class the consenting schools in an administratively
feasible way, protective of ACT's rights. Compare Sandusky
Wellness Ctr., 863 F.3d at 469 ("Identifying solicited fax
recipients through a form-by-form inquiry is sufficiently
individualized to preclude class certification."), with Smilow v.
Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003)
("Common issues predominate where individual factual
- 24 -
determinations can be accomplished using computer records,
clerical assistance, and objective criteria -- thus rendering
unnecessary an evidentiary hearing on each claim."). The district
court therefore reasonably determined that individual issues of
permission would predominate over common questions for both
Class A and Class B. See Asacol, 907 F.3d at 51 (explaining that
review of class-certification decision for abuse of discretion
involves clear-error review of "'fact-dominated' issues" (quoting
In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d
6, 17 (1st Cir. 2008))); Díaz-Alarcón v. Flández-Marcel, 944 F.3d
303, 312 (1st Cir. 2019) (explaining that a "judge's choice between
competing, but rational, views cannot be clearly erroneous"
(citing Anderson v. City of Bessemer City, 470 U.S. 564, 573–74
(1985))).2
C.
Bais Yaakov has asked that, were we to affirm the
district court's denial of class certification, we should direct
the district court to consider revising the class definitions as
Bais Yaakov now proposes. As we have explained, Bais Yaakov had,
in pertinent part, defined Class B as consisting of those whom ACT
sent "a facsimile advertisement" and Class A as consisting of those
2 We need not reach the question of whether Class A as
defined initially by Bais Yaakov would nevertheless be rejected as
a fail-safe class were there otherwise no predominance problem.
- 25 -
whom ACT sent "an unsolicited facsimile advertisement." In a
footnote on the last page of Bais Yaakov's reply memorandum in
support of its motion for class certification before the district
court, Bais Yaakov suggested that, if necessary, the district court
could narrow Class B to consist of those whom ACT sent "a facsimile
whose content was identical or substantially similar to the content
of any of the [three] facsimiles" Bais Yaakov says it received and
that the district court could narrow Class A the same way but
concerning an "unsolicited facsimile." Neither below nor on appeal
has Bais Yaakov explained how these alternative definitions might
cure the problems we have just discussed. Indeed, our discussion
effectively assumed -- favorably to Bais Yaakov -- that each
putative class member received those three documents from ACT via
fax. In short, the proposed amendment would not eliminate the
need to resolve individual issues of permission.
To summarize: The typical school sent ACT a form
providing the school’s fax number and expressly asking to be sent
ACT publications. The documents ACT then sent in return to the
supplied fax number appear on their face to provide just the sort
of information that a school would want to receive after requesting
ACT publications. These common facts raise quite a strong
inference that the school sending such a form understood its
request as inviting ACT to fax the documents that it faxed. After
all, why supply the fax number and request ACT publications if not
- 26 -
to receive the publications by fax? Bais Yaakov does have a point
in arguing that its own circumstances may be found to belie any
inference that it had any such understanding. The faxes it
received were sent seven years later, and it promptly objected.
But the evidence submitted by ACT makes clear that the
circumstances of at least some other schools was to the contrary,
actually reinforcing the strong inference that the forms sent to
ACT were clearly understood and intended to be read as invites to
send by fax that which was faxed. Whether that is so in any
individual case may be a close question which we need not resolve.
We hold simply that it is a genuine question that may well be
answered one way or the other for any given school, and beyond
arguing on the merits that no school gave permission to fax the
documents -- an argument we have now rejected -- Bais Yaakov offers
no means by which to answer that crucial question on a common
basis. Hence, the district court did not abuse its discretion in
finding that the proposed classes could not be certified.
V.
We consider, finally, Bais Yaakov's appeal from the
dismissal of its own individual claim as moot. After denying Bais
Yaakov's motion to proceed as a class action, the district court
turned to the merits of the case, eventually denying in pertinent
part contending motions for summary judgment on the questions of
whether the three faxes appended to the complaint were
- 27 -
advertisements and whether Bais Yaakov had permitted ACT to send
them by fax. ACT thereupon sent Bais Yaakov a check in the amount
of $45,600, which Bais Yaakov does not dispute is the most that it
can recover in this lawsuit. In a letter accompanying the check,
ACT also promised to honor the check no matter the outcome of the
case, and it offered to deposit the check with the district court,
to be held until any appeal is completed and final judgment
entered.3 ACT also promised not to send Bais Yaakov any further
faxes "that violate the TCPA," upon pain of paying "$1,500 should
it send any such fax." The record also reflects that ACT has sent
no faxes of any type to Bais Yaakov since 2012.
Bais Yaakov rejected the check and the accompanying
promises. Unimpressed, the district court concluded that Bais
Yaakov had received all that it could possibly receive as damages,
and that it had no basis to obtain injunctive relief because "the
allegedly wrongful behavior could not reasonably be expected to
recur." Bais Yaakov, 461 F. Supp. 3d at 4 (quoting Am. C.L. Union
of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 55 (1st Cir.
2013)).
3 The letter stated, "In all events, ACT hereby commits to
paying $45,600 to Bais Yaakov, by way of the payment tendered with
this letter or through other means as necessary at the conclusion
of this litigation." It also stated that "this tendered payment
is unconditional and irrevocable."
- 28 -
In this very lawsuit, we previously considered and
rejected a prior attempt by ACT to moot the litigation by tendering
an offer of judgment under Rule 68 of the Federal Rules of Civil
Procedure. See Bais Yaakov of Spring Valley v. ACT, 798 F.3d 46(1st Cir. 2015). In so doing we expressed concern about the threat
to meritorious class actions posed by sanctioning efforts to cut
off Rule 23 certification by mooting the individual claims of the
named plaintiff. Id. at 48–49. Nevertheless, we also recognized
uncertainty regarding the weight attributed by the Supreme Court
to such a concern. Compare Deposit Guar. Nat'l Bank v. Roper, 445
U.S. 326, 339 (1980) ("Requiring multiple plaintiffs to bring
separate actions, which effectively could be 'picked off' by a
defendant's tender of judgment before an affirmative ruling on
class certification could be obtained, obviously would frustrate
the objectives of class actions."), with Genesis Healthcare Corp.
v. Symczyk, 569 U.S. 66, 78 (2013) (describing that line from Roper
as dicta and explaining that Roper's holding turned on the named
plaintiff "possess[ing] an ongoing, personal economic stake in the
substantive controversy –– namely, to shift a portion of attorney's
fees and expenses to successful class litigants"). So we
ultimately based our rejection of the Rule 68 pick-off gambit on
a prediction that the Supreme Court would find that a rejected
Rule 68 offer provides no actual relief. See Bais Yaakov, 798
F.3d at 52.
- 29 -
The Supreme Court has since held just that: "An
unaccepted settlement offer -- like any unaccepted contract offer
-- is a legal nullity, with no operative effect." Campbell-Ewald
Co. v. Gomez, 577 U.S. 153, 162 (2016) (quoting Genesis Healthcare,
569 U.S. at 81 (Kagan, J., dissenting)). So the question before
us is whether there is good reason to reach a different result
when a check, rather than a Rule 68 offer, is tendered.
The precedent is admittedly uncertain and sparse on this
subject. After all, not many plaintiffs walk away from an offer
to pay 100% of what they seek. Nevertheless, there are reasons to
conclude that ACT's tender of a check and associated promises did
not moot Bais Yaakov's claims. Bais Yaakov's self-interest in
appealing the denial of class certification might have been reason
enough depending on how well Roper stands up in light of Genesis,
see Campbell-Ewald, 577 U.S. at 165 ("While a class lacks
independent status until certified, a would-be class
representative with a live claim of her own must be accorded a
fair opportunity to show that certification is warranted."
(citation omitted)), though we have now concluded the district
court did not err in denying class certification. In any event,
as Justice Thomas pointed out, at common law unconditionally
offering funds while still denying liability is not a tender that
requires the end of a lawsuit. Id. at 170-71 (Thomas, J.,
concurring in the judgment). Most narrowly, the transmittal of an
- 30 -
ordinary check does not differ for present purposes from an offer
to pay: The recipient has a promise, but no funds. As the ancient
proverb goes, "[t]here's many a slip 'twixt the cup and lip." 4
The Greek Anthology 21 (W.R. Paton trans., 1918). Indeed, the
Rule 68 offer at least conveys the ability to obtain a judgment,
while the check conveys only a hope that the bank account will
have the promised funds. Cf. id. at 166 (majority opinion)
(reserving judgment on whether a deposit of funds with the court
and entry of judgment in the amount of those funds would moot the
case); id. at 186 & n.2 (Alito, J., dissenting).4 So, as best we
can tell, Bais Yaakov's damage claim is not moot.
Finally, there is Bais Yaakov's request for injunctive
relief. We find no error in the district court's finding that
ACT's cessation of sending faxes to Bais Yaakov since 2012, its
deletion of Bais Yaakov's fax number from ACT's database, and its
admission that any further faxing to ACT would render ACT liable,
all combine to establish that ACT's allegedly wrongful behavior as
to Bais Yaakov "could not reasonably be expected to recur." Bais
4 Compare Chen v. Allstate Ins. Co., 819 F.3d 1136, 1144–46
(9th Cir. 2016) (reasoning that the defendant's deposit of the
full amount of plaintiff's claims in an escrow account did not
moot the plaintiff's claim since the plaintiff had not "actually
or constructively received" the money), with Leyse v. Lifetime
Ent. Servs., LLC, 679 F. App'x 44, 48 & n.2 (2d Cir. 2017) (summary
order) (concluding that the district court properly entered
judgment on the plaintiff's individual claim where the defendant
deposited the full amount recoverable by the plaintiff with the
clerk of court).
- 31 -
Yaakov, 461 F. Supp. 3d at 4 (quoting Am. C.L. Union of Mass., 705
F.3d at 55).
Bais Yaakov makes no other argument that its individual
claim for injunctive relief should survive if we both affirm the
denial of class certification and find no error in the district
court's finding that Bais Yaakov cannot reasonably be expected to
receive any more faxes from ACT after eight years of silence and
the express assurances tendered.
VI.
For the foregoing reasons, we affirm the district
court's denial of class certification and its dismissal of the
claim for injunctive relief. We otherwise vacate the judgment and
remand for further proceedings.
- Concurring Opinion Follows -
- 32 -
BARRON, Circuit Judge, concurring. This case raises a
question like the one that we confronted in In Re Asacol Antitrust
Litig., 907 F.3d 42 (1st Cir. 2018): Does Federal Rule of Civil
Procedure 23's predominance requirement permit certification of a
class whose members could prove their claim -- at least in part -
- only through individual testimony? It is easy enough to see why
the answer might be, "No." How will common rather than
individualized issues predominate after certification if each
class member's claim depends on testimony as individualized as, to
take this case as an example, whether the class member had
expressly agreed to receive a fax from the defendant before the
defendant sent it?
This case also results in the same answer to that
question that we gave in Asacol: The class certification request
must be denied on predominance grounds because the defendant has
made a seemingly credible promise to challenge the testimony that
each class member would give if required to do so at a trial on
that issue. Thus, here, as there, we reject a class certification
request on predominance grounds, despite the important role that
a class action would play in making meaningful relief possible for
the defendant's alleged wrongs.
It is safe to assume that our "predominance" holding in
this case will not go unnoticed. District Court judges in our
Circuit thoughtfully expressed the concern in the wake of Asacol
- 33 -
that we had construed the predominance requirement there too
strictly. See, e.g., In re Loestrin 24 FE Antitrust Litig., 410
F. Supp. 3d 352, 403-04 (D.R.I. 2019) (Smith, C.J.); In re Intuniv
Antitrust Litig., No. 1:16-cv-12396, 2019 WL 3947262, at *7 n.8
(D. Mass. Aug. 21, 2019) (Burroughs, J.). Our reliance on Asacol
here may increase the concern that we are mistakenly construing
the predominance requirement to render Rule 23, at least in certain
important categories of cases, incapable of protecting "the rights
of groups of people who individually would be without effective
strength to bring their opponents into court at all." Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quotation marks
omitted); see also In re New Motor Vehicles Canadian Exp. Antitrust
Litig., 522 F.3d 6, 8 (1st Cir. 2008) ("[A]n erroneous failure to
certify a class where individual claims are small may deprive
plaintiffs of the only realistic mechanism to vindicate
meritorious claims.").
Nonetheless, I continue to think that our decision in
Asacol was right, and I am in full agreement with my colleagues
that it requires that we affirm the District Court's denial of the
motion to certify the class in this case. I write separately,
though, to emphasize the limits on the scope of our holding in
- 34 -
Asacol and to explain how our holding in this case accords with
them.
Asacol's limits are worth highlighting because they
convince me that the concern that we are unduly cutting back on
Rule 23 through our construction of the predominance requirement
is misplaced, or, at least, premature. The current state of our
precedent does not preclude certification in cases in which the
putative class members' claims depend on an individualized means
of proof just because the defendant has vowed to challenge each
class member's showing at trial if the request for class
certification is granted. Instead, as I will explain, our
precedent in this area leaves open various viable means by which
a putative class can satisfy the predominance requirement in such
cases even if the defendant makes that promise about its litigation
strategy going forward.
I.
Before Asacol, we had decided a very similar case: In re
Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015). A review of
Nexium's own limitations -- and how Asacol responded to them -
- helps to place our precedent in this area in its proper context.
The named plaintiffs in Nexium were suing AstraZeneca,
which was the holder of several patents related to the anti-
heartburn drug Nexium, as well as several of its generic
pharmaceutical competitors. Id. at 13-14. The named plaintiffs
- 35 -
alleged that the defendants had violated state antitrust laws by
entering into agreements not to compete with three generic drug
manufacturers and that, as a result, AstraZeneca had overcharged
for Nexium between 2008 and 2014. Id. The named plaintiffs also
sought certification of a class consisting of all persons or
entities who had purchased Nexium during that six-year period (with
certain limitations unnecessary to enumerate here). Id. at 14.
The defendants objected to the certification of the
proposed class on the ground that expert evidence showed that it
contained "some number of brand-loyal consumers who would [have]
continue[d] to purchase branded Nexium even when a generic bec[ame]
available." Id. at 20. The defendants argued that "the [brand-
loyalist issue] present[ed] problems that [the] plaintiffs [could
not] overcome, for [the] plaintiffs ha[d] no methodology to
identify . . . those consumers who would have switched to a generic
version." Id. (first alteration in original).
The Nexium defendants were in part mounting a
"categorical challenge" to the bid for class certification on the
ground that "the hypothetical nature of the inquiry into
[antitrust] injury . . . turned on what was necessarily
speculation about a plaintiff's . . . [individual] purchasing
preference." Asacol, 907 F.3d at 59-60 (Barron, J., concurring).
Nexium rejected that aspect of the defendants' challenge, because
an individual class member could prove the defendant's
- 36 -
anticompetitive conduct caused injury under the applicable state
antitrust law through "testimony . . . that, given the choice, he
or she would have purchased the generic." Nexium, 777 F.3d at 20.
Nexium explained that "[s]uch testimony, if unrebutted,
would be sufficient to establish injury in an individual action."
Id. It further explained that, because "[t]here cannot be a more
stringent burden of proof in class actions than in individual
actions," "similar testimony in the form of an affidavit or
declaration would be sufficient in a class action" to prove the
alleged antitrust injury. Id.
The Nexium defendants did also argue that the
contemplated affidavits could not save the class certification
request because, under Rule 23's predominance requirement, "any
mechanism of [proving injury] that requires determination of the
individual circumstances of class members is improper." Id. at
21. But, Nexium rejected this ground for denying class
certification as well.
Nexium emphasized that "the Supreme Court . . . and the
circuits in other cases have made clear that the need for some
individualized determinations at the liability and damages stage
does not defeat class certification." Id. (citing Amgen Inc. v.
Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013)). Moreover,
the defendants had not asserted that they would -- let alone that
they feasibly could -- challenge the claims of antitrust injury,
- 37 -
class member by class member, at trial in the event of class
certification, as the defendants had not at any point asserted
that they would challenge the class members' affidavits if
submitted. See Asacol, 907 F.3d at 52.
Thus, although Nexium affirmed certification of the
class at issue there, it did not hold that a putative class could
always fend off a defendant's predominance-based challenge just by
offering to submit affidavits previewing how the class members
would testify at trial. Nexium held only that such affidavits
could allow the putative class to defend against such a challenge
to certification if the affidavits were unrebutted.
It was against this backdrop that we then decided Asacol.
There, we once again addressed a request to certify a class made
up of individuals claiming an injury under state antitrust laws
premised on the defendants' allegedly anticompetitive efforts to
keep a cheaper generic off the market. Id. at 44-45.
The proponents of class certification in Asacol invoked
Nexium to explain why affidavits from members of the putative class
attesting to their willingness to buy the generic would solve any
predominance problem. See id. at 52. But, we concluded that
Nexium did not support the certification request. See id. at 52-
53.
We explained that the Asacol defendants had done exactly
what the defendants in Nexium had not. In addition to putting
- 38 -
forth expert evidence showing that some class members were brand
loyal (though without identifying any specific individuals who
were), the Asacol defendants had "expressly stated their intention
to challenge any affidavits that might be gathered" from class
members asserting that they would have bought the generic drug had
they been given the choice to do so. Id. at 52.
We acknowledged that "'unrebutted testimony' . . . in an
affidavit could be used prior to trial to obtain summary judgment,
thereby efficiently and fairly removing the issue of injury-in-
fact from the case for trial." Id. (quoting Nexium, 777 F.3d
at 21). But, we pointed out, "[t]estimony that is genuinely
challenged, certainly on an element of a party's affirmative case,
cannot secure a favorable summary judgment ruling disposing of the
issue." Id. at 53 (emphasis added).
We thus concluded that it was dispositive of the
predominance issue that those seeking class certification in
Asacol had offered no response to the defendants' assertion that
they intended to challenge any affidavits that might be produced
by class members denying their brand loyalty. See id. at 52-54.
The class would not be able to "rely on unrebutted testimony in
affidavits to prove injury-in-fact" as the case unfolded post-
certification. id. at 53. That being so, the contemplated
affidavits could not preclude the need for mini-trials on the
merits of the disputed issue concerning injury. It therefore
- 39 -
followed that the putative class could not rely on the affidavits
to surmount the defendants' predominance-based objection to class
certification, given the number of plaintiffs who seemingly would
have had to take the stand post-certification if the defendants
pressed their Seventh Amendment and due process rights to the end.
See id.
Asacol was no more categorical in denying certification
on predominance grounds, however, than Nexium had been in granting
certification in the face of a predominance challenge. Asacol did
hold that the predominance requirement could not be satisfied in
the face of a defendant's asserted intent to press its rights all
the way through trial. But, it did so in a case in which the
putative class had offered no basis for deeming that threat to be,
in effect, an empty one. See id. at 61 (Barron, J., concurring)
("[T]he plaintiffs do not argue that the defendants would be
incapable of mounting effective challenges to any, let alone to
most, of the plaintiffs' affidavits at summary judgment. Nor may
we conclude that the plaintiffs would only need to rely on
individualized proof of injury for a small identifiable subset of
the class . . . .").
In light of this important limitation on Asacol's
holding, its primary significance in my view is not to be found in
the outcome in that specific case. It is to be found in the
structure of the inquiry that it required a district court to
- 40 -
undertake in every case in which it must determine whether a
putative class can satisfy the predominance requirement.
Asacol makes clear that to assess predominance a
district court must consider, in a realistic but rigorous manner,
how a trial would proceed in the event of certification. Asacol
thus requires a district court, in undertaking that assessment, to
make a prediction about what would happen post-certification if
the defendant were to follow through and challenge the claims of
the putative class members by asking whether certification would
result in, as we put it then, inefficiency (which "can be pictured
as a line of thousands of class members waiting their turn to offer
testimony and evidence on individual issues") or unfairness (which
can be "pictured as an attempt to eliminate inefficiency by
presuming to do away with the rights a party would customarily
have to raise plausible individual challenges on those issues").
Id. at 51-52.
Importantly, then, Asacol leaves open the possibility
that a district court's predictive assessment might not paint the
concerning picture of how the post-certification litigation would
unfold (even assuming no settlement) that would preclude
certification of a class on predominance grounds. Accordingly, I
understand Asacol to leave open the possibility that the
predominance requirement might be met even in a case involving a
- 41 -
claim in which the members of the putative class must rely on a
means of proof that is individualized.
II.
We come, then, to the case at hand. Here, we once again
conclude on predominance grounds that the proposed class cannot be
certified. But, in doing so, we break no ground that Asacol did
not already break.
As in Asacol, the claim of class members in this case
depends on knowledge that is specific to each one: here, whether
the class member provided advance permission to receive the kind
of fax at issue. As in Asacol, the defendant in this case has
vowed to contest each class member's claim on that highly
individualized issue, thereby suggesting that each such member
will have to provide individualized testimony -- one by one -- at
trial on it. And, as in Asacol, the proponent of class
certification here has not explained how the evidentiary realities
on the ground undermine the defendant's assertion that it can force
a trial on the disputed issue as to each class member.
Indeed, if anything, the defendant's promise to contest
the class-member testimony at trial post-certification is even
more credible here than it was in Asacol. It comes supported by
affidavits of the defendant's own from class members. Yet, the
proponent of certification, Bais Yaakov, has failed to identify a
persuasive ground for doubting the defendant's showing that a
- 42 -
stream of mini-trials likely awaits on the other side of
certification.
True, Bais Yaakov contests the significance of the
undisputed evidence that thousands of schools had asked for ACT to
send them publications while supplying it with a fax number. Bais
Yaakov responds that, because the recipient's prior consent to
receiving a faxed advertisement is an affirmative defense that the
defendant bears the burden of proving, that evidence does not
suffice to show that issues of consent would have to be adjudicated
class member by class member at trial. Bais Yaakov relies for
that contention on the TCPA's requirement that the defendant show
that there was express permission given in advance applicable to
each advertisement that it faxed.
It is far from clear that requirement in the TCPA would
spare an individualized inquiry into the nature of a class member's
relationship to ACT. But, even if we assume that the TCPA makes
the bar for establishing the express-permission defense as high as
Bais Yaakov construes it to be, there remains the fact that ACT
has introduced affidavits from seventy-odd schools to bolster its
predominance case. ACT contends that those affidavits show that
those schools did expressly consent to the receipt of such faxes
- 43 -
when they requested publications from ACT while supplying their
fax numbers to it.
Bais Yaakov does not attempt in response to make anything
of the fact that these affidavits concern only seventy-odd
schools -- and thus merely "a small identifiable subset of the
class's members."5 In re Asacol Antitrust Litig., 907 F.3d 42, 61
(1st Cir. 2018) (Barron, J., concurring). For example, Bais Yaakov
makes no argument that ACT "would be incapable of mounting
effective challenges" to a non-de minimis number of class members'
claims, id. (Barron, J., concurring), because speculation alone
supports the notion that ACT would be able to obtain either
additional affidavits beyond those that it has produced or any
similar evidence that could suffice to create a genuine issue of
disputed fact as to whether those class members consented to
receiving the faxes, id. at 53 ("Nor have the plaintiffs provided
any basis from which we could conclude that the number of
affidavits to which the defendants will be able to mount a genuine
challenge is so small that it will be administratively feasible to
require those challenged affiants to testify at trial."); see also
id. at 52-53 ("Nor do plaintiffs point to any basis in the record
for deeming all such challenges [by the defendants] to be so
ACT's records indicate that it sent more than 28,355 fax
5
advertisements between June 30, 2008, and June 30, 2012. Bais
Yaakov of Spring Valley v. ACT, Inc., 328 F.R.D. 6, 9 (D. Mass.
2018).
- 44 -
implausible as to warrant a finding that we can consider the issue
to be uncontested.").
In fact, Bais Yaakov's only argument with respect to the
affidavits from school officials is that none shows that even those
officials' own schools gave the requisite prior express
permission. But, as we explain, that contention is not tenable,
given what those affidavits indisputably show.
As a result, much like in Asacol itself, the proponent
of certification here has failed to explain how the claim of each
class member could be dealt with post-certification in a manner
that would not be "inefficient or unfair." Id. at 51. Thus,
because the proponent of class certification bears the burden of
satisfying the predominance requirement, In re Nexium Antitrust
Litig., 777 F.3d 9, 18 (1st Cir. 2015), we must reject this request
for class certification just as we rejected the one in Asacol.
III.
For the reasons set forth above, it is clear to me that
our decision today does not extend Asacol beyond its own limits.
But, I do think it is important not to lose sight of the reasons
for those limits. Attending to them will ensure that neither
Asacol nor this case is understood to impose a greater bar to class
certification than it does.
For one thing, I understand the limited nature of
Asacol's predominance holding to reflect a recognition that even
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in an individual action involving a claim that necessarily depends
on individualized testimony, the plaintiff may be able to secure
summary judgment in her favor based on an affidavit previewing
that testimony. After all, a defendant in an individual action
cannot defeat a motion for summary judgment predicated on an
affidavit previewing the plaintiff's testimony merely by asserting
that it will contest that testimony at trial. See In re Asacol
Antitrust Litig., 907 F.3d 42, 53 (1st Cir. 2018). The defendant
must make a showing at the summary judgment stage that suffices to
put the contents of the plaintiff's affidavit in doubt. See
Triangle Trading Co. v. Robroy Indus., 200 F.3d 1, 2 (1st Cir.
1999) (explaining that "[c]onclusory allegations, improbable
inferences, and unsupported speculation" cannot give rise to a
genuine issue of disputed fact (quoting Smith v. F.W. Morse & Co.,
76 F.3d 413, 428 (1st Cir. 1996))).
For another thing, I understand the limited nature of
Asacol's predominance holding to reflect a recognition that a class
cannot be held to a higher standard in moving for summary judgment
than the standard to which its members would be held in moving for
summary judgment in individual actions of their own. See id. at
52; Nexium, 777 F.3d at 20 ("There cannot be a more stringent
burden of proof in class actions than in individual actions.");
see also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 456-57
(2016) (allowing a class to rely on representative statistical
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evidence because each member "likely would have had to introduce
[that] study" if the members "had proceeded with 3,344 individual
lawsuits"). Thus, I understand Asacol to recognize that, if an
individual class member could win at summary judgment on an issue
dependent on individual testimony and central to the claim in
her own individual action, that class member also could do so on
the strength of that same showing as a member of a class made up
of numerous individuals.
Accordingly, I understand Asacol to be in line with our
prior precedent recognizing that when a district court assessing
predominance "supportably finds that an issue which, in theory,
requires individualized factfinding is, in fact, highly unlikely
to survive typical pretrial screening (such as a motion to strike
or a motion for summary judgment), a concomitant finding that the
issue neither renders the case unmanageable nor undermines the
predominance of common issues generally will be in order." Waste
Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)
(emphasis added).6 After all, due to the lack of any need for a
6 It is worth noting that the inquiry that I contemplate a
district court undertaking here is not particularly novel, even in
the class action context. As to any request to certify a class,
the district court must assess whether the class definition is
sufficiently "definite" so as to "allow the class members to be
ascertainable." Nexium, 777 F.3d at 19. In Nexium, we concluded
that the proposed class "satisfie[d] th[at] standard[] by being
defined in terms of purchasers of Nexium during the class period,"
id., even though the determination of whether any particular
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"mini-trial on the issue" in that circumstance, Amgen Inc. v. Conn.
Ret. Plans & Tr. Funds, 568 U.S. 455, 477 (2013), the concerning
picture that Asacol paints of long lines of plaintiffs waiting to
give testimony at the courthouse will fade to black.
Because of this understanding of Asacol, I do not read
it to hold that a putative class may surmount a defendant's
predominance-based challenge to certification only by showing that
class members are entitled to invoke a presumption in their favor
on the individualized aspect of their claim that the defendant
vows to dispute at trial. Asacol did recognize that in Halliburton
Co. v. Erica P. John Fund, the Supreme Court relied on the
existence of such a legal presumption in rejecting a predominance-
based challenge to certification, see Asacol, 907 F.3d at 53
(citing Halliburton, 573 U.S. 258 (2014)). And, in rejecting the
request for class certification in Asacol, we did note that the
putative class members there were not entitled to any presumption
regarding their willingness to purchase a generic under the state
antitrust laws that supplied their causes of action. Id.But, a closer look at Halliburton's logic suggests that
the entitlement to invoke a presumption like the one that applied
individual falls within that class is an inherently individualized
one that the defendants there in theory could have contested. Yet,
we expressed no concern -- and no one argued -- that this feature
of the inquiry on its own automatically destroyed the efficiencies
that make class actions a valuable procedural device.
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there may not be a prerequisite to a putative class satisfying the
predominance requirement in the face of a defendant's assertion
that the putative class's underlying claim can be proved only
through individualized testimony from each class member. Nor does
Asacol, as I read it, indicate that it adopted a different
understanding of Halliburton on that score.
The Supreme Court in Halliburton considered a request
for certification of a class of those alleging that Halliburton
Co. had violated section 10(b) of the Securities Exchange Act of
1934 and Securities and Exchange Commission Rule 10b-5 by making
a series of material misrepresentations to try to inflate its stock
price. 573 U.S. at 264. The Court had held in a prior case, Basic
Inc. v. Levinson, 485 U.S. 224 (1988), that "requiring . . .
direct proof of reliance [in such an individual securities fraud
action] 'would place an unnecessarily unrealistic evidentiary
burden on the [investor],'" because the investor would "have to
'show a speculative state of facts, i.e., how he would have
acted . . . if the misrepresentation had not been made.'"
Halliburton, 573 U.S. at 267 (fourth alteration in original)
(quoting Basic, 485 U.S. at 245). Basic thus had held that
investors could "invok[e] a presumption that a public, material
misrepresentation will distort the price of stock traded in an
efficient market, and that anyone who purchases the stock at the
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market price may be considered to have done so in reliance on the
misrepresentation." Id. at 283-84.
The putative class in Halliburton pointed to this
presumption of reliance as a reason to reject the predominance-
based challenge to class certification that the defendants were
pressing in that case. See id. at 265-66. The notion was that
the crucial issue of class member reliance on the defendants'
alleged misinformation could be proved on a class-wide basis -
- rather than class member by class member through individualized
testimony at trial -- in consequence of the presumption of reliance
that Basic had recognized each class member was entitled to invoke.
See id. at 267-68.
In considering that contention, Halliburton did note
that there were features of the presumption that arguably favored
the defendants' position regarding predominance. For example,
"Basic [had] emphasized that the presumption of reliance was
rebuttable rather than conclusive," id. at 268, and that a
defendant could defeat that presumption by making "[a]ny showing
that severs the link between the alleged misrepresentation and
either the price received (or paid) by the plaintiff, or [the
plaintiff's] decision to trade at a fair market price," id. at 269(first alteration in original) (quoting Basic, 485 U.S. at 248).
But, the Court ultimately held that there was no
predominance-based reason to deny class certification. The
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defendant's "opportunity to rebut the presumption of reliance" on
an "individual" basis did have, according to the Court, "the effect
of 'leav[ing] individualized questions . . . in the case.'" Id.
at 276 (first alteration in original) (quoting id. at 295 (Thomas,
J., concurring in the judgment)). Nevertheless, the Court
explained, that was "no reason to think that these questions
w[ould] overwhelm common ones." Id. For, while the Court
acknowledged that a defendant might be able to show that an
individual class member "would have bought or sold the stock even
had he been aware that the stock's price was tainted by fraud,"
id. at 269, it determined that the prospect "[t]hat the defendant
might attempt to pick off the occasional class member here or there
through individualized rebuttal does not cause individual
questions to predominate." Id. at 276.
Halliburton in this respect may be understood to have
determined that it would be -- to use our own way of putting the
point -- "highly unlikely" that a defendant would have much luck
puncturing an otherwise unrebutted case for finding investor
reliance in such a securities fraud case. See Waste Mgmt.
Holdings, Inc., 208 F.3d 288, 298 (1st Cir. 2000). But, if so,
then there is no reason why, in principle, a court could not make
a similar assessment based on the prospect of affidavits previewing
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class member testimony in certain types of case in which no such
presumption applies.
Of course, the defendant in a case of that kind would
still have the "opportunity," Halliburton, 573 U.S. at 276, to
make a responsive showing that would suffice to establish at the
certification stage that after certification were granted it would
be able to create a genuine dispute of material fact as to the
putative class members' claims, despite the affidavits previewing
their testimony on the critical issue. But, the defendants in
Halliburton had a similar opportunity in that case to cast doubt
on the putative class members' claims -- supported by the
presumption recognized in Basic -- to have relied on misleading
investment information. And yet the Court did not think that bare
possibility a reason to conclude that individualized issues would
predominate, as it implicitly predicted that it would be difficult
for a defendant to produce evidence that could cast doubt on the
reliance of more than "the occasional class member here or there."
Id.
Of course, even when the putative class points to the
affidavits from class members that it could use to secure summary
judgment on the disputed issue, the defendant may well find it
quite easy at the certification stage to demonstrate that there is
a predominance problem nonetheless. A defendant might have
business records that suffice to permit it to do just that. Or,
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it might even have affidavits from putative class members -- as
ACT has here -- that are representative of more than a de minimis
chunk of the class and that thus would suffice to put a substantial
number of the class members' own affidavits in doubt.
In other cases, though, a defendant might turn out to
have a difficult time identifying evidence of that kind at the
certification stage. Halliburton itself is, of course, an example
of a case in which, by virtue of a strong presumption, that was
so. But, even in a case involving a claim akin to the ones in
Nexium or Asacol, for which no similar presumption applies, it may
not be easy for the defendant to demonstrate that there is a
predominance problem.
A plaintiff's representation about how it would have
acted if the world had been different than it was (such as a
consumer's testimony about whether she would have purchased a
generic drug cheaper than the brand-named one that she had
previously used) is, by its nature, not easily undermined. It is
thus not clear to me how a defendant could show that it would be
able to genuinely challenge such a representation post-
certification if faced with the prospect of affidavits from class
members attesting to something so peculiarly within their own
knowledge.
True, a defendant in a case similar to Asacol could
respond to the prospect of affidavits disclaiming brand loyalty by
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pointing to class members' health plan purchasing records. But
such documents might merely highlight that a class defined by
price-sensitive health plans -- indicating a lack of brand loyalty
-- would still be a viable one. See Asacol, 907 F.3d at 61 (Barron,
J., concurring).
I also do not understand our precedent to this point to
establish that a defendant's invocation of expert statistical
evidence about the presence of uninjured class members materially
changes the analysis that a district court must undertake. In
Asacol, the district court did find based on expert testimony that
approximately ten percent of the putative class was brand loyal
and thus uninjured, 907 F.3d at 46-47, and we then held that this
evidence indicated that the inherently individualized issue of
brand loyalty presented a predominance concern, given the "needle
in a haystack" problem, id. at 61 (Barron, J. concurring). But,
we did not go on to suggest that such statistical evidence sufficed
on its own to establish that the individual class members would
not have been able to obtain summary judgment as to the issue of
brand loyalty had they introduced affidavits attesting that they
would have been willing to buy the cheaper generic if it had been
available. Such statistical evidence would neither have
established that any single class member was personally brand loyal
nor even provided a basis for finding by a preponderance that any
one of them was. See Nexium, 777 F.3d at 20; see also Tyson Foods,
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Inc. v. Bouaphakeo, 577 U.S. 442, 458 (2016) (explaining that the
introduction of representative evidence in Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338 (2011), "would have violated the Rules
Enabling Act by giving plaintiffs and defendants different rights
in a class proceeding than they could have asserted in an
individual action"); cf. Charles Nesson, The Evidence or the Event?
On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L.
Rev. 1357, 1378-80 (1985) (explaining the "blue bus hypothetical,"
in which a plaintiff loses in his suit against the Blue Bus Company
before reaching the jury because a "factfinder c[ould] only
conclude from the plaintiff's evidence that there was an 80% chance
that he was injured by the Blue Bus Company and a 20% chance that
he was not").
IV.
I do not seek here to define with any precision the
showing at the certification stage that a defendant must make in
the face of an assertion by the proponent of certification that
common questions will predominate. I also do not seek here to
define precisely the showing that the certification proponent must
make to rebut the defendant's contention that common issues will
not. Nor, finally, do I mean to catalog the specific types of
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cases that are more or less susceptible to being challenged on
predominance grounds.
The reviewing court's task when it comes to the
predominance requirement is to make a reasoned judgment about how
the litigation would proceed in the event of certification. It
must make that judgment by predicting how many individual mini-
trials would be required if the class were certified, which in
turn entails a forecast about whether it is "highly unlikely" that
the defendant will be able to stave off a post-certification motion
for summary judgment. Waste Mgmt. Holdings, Inc., 208 F.3d 288,
298 (1st Cir. 2000). The showing required of both the putative
class and the defendant at the certification stage as to
predominance thus will necessarily vary from case to case, in line
with the nature of the underlying claim and the type of issue that
it requires class members to prove through individualized
showings. The summary judgment standard is such that I do not
hazard more categorical observations.
Still, the showings must have enough substance to them
to permit the court to engage meaningfully in the required
predictive exercise. And, in determining how much substance is
enough, it is important to keep in mind both that the district
court's judgment on that score is entitled to deference, see In re
Asacol Antitrust Litig., 907 F.3d 42, 51 (1st Cir. 2018) (reviewing
the certification decision for abuse of discretion), and that a
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certifying court will have an opportunity to revise that
determination if in reality proceeding as a class proves
unworkable, Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160
(1982) ("Even after a certification order is entered, the judge
remains free to modify it in the light of subsequent developments
in the litigation.").
It is also important to keep in mind that we have never
indicated that, in a case where affidavits from class members are
required to show that they can prove their claim, it would be an
abuse of discretion for a district court to certify a class unless
the putative class has already in fact collected and introduced
those affidavits into the record. See In re Nexium Antitrust
Litig., 777 F.3d 9, 20-21, 24 (1st Cir. 2015). Nor is there
anything in our case law to indicate that a defendant must actually
collect and introduce at the certification stage all of the
evidence on which it would rely in the merits phase, including the
evidence it would introduce in order to oppose summary judgment.
Indeed, I would be concerned that requirements to that effect would
conflict with the principles that undergird Rule 23(b)(3), and
upset the careful balance that the (b)(3) class action procedure
strikes between efficiency of litigation and fidelity to a
defendant's due process and Seventh Amendment rights. See Asacol,
907 F.3d at 51-52; see also Fed. R. Civ. P. 23 advisory committee's
note to 1966 amendment ("Subdivision (b)(3) encompasses those
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cases in which a class action would achieve economies of time,
effort, and expense, and promote uniformity of decision as to
persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results.").
That said, a review of the state of our precedent in
this area reveals to me that there is still much to be decided
when it comes to the predominance requirement, notwithstanding our
important holdings to date establishing the applicable framework
that must be used to decide future cases implicating it. For that
reason, while I join the majority in full in affirming the District
Court's denial of certification for this class, just as I joined
the majority in Asacol itself, I think it important to emphasize
here, as I thought it important to emphasize there, the limited
nature of our holding in this case. For, I am confident that, as
a consequence of this decision, our current precedent in this area
continues to ensure that viable opportunities remain for securing
class certification in cases involving claims that inherently
depend on highly individualized means of proof, no matter how
intently a defendant may represent at the certification stage that
it wishes to contest those means at any trial that might ensue.
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