A federal court judge in Ohio recently denied class certification as a result of the defendant’s credible testimony that set forth the implementation of compliance protocols designed to ensure that faxes were only sent to consumers that had provided prior express consent. In doing so, the court ruled that individualized issues predominated despite the defendant’s lack of familiarity with the Telephone Consumer Protection Act and lack of proof documenting consent.
The court compared the case to a Fifth Circuit ruling and considered precedent where employees kept no records and could not distinguish which recipients gave express consent and which did not. The precedent considered by the court was such that the defendant had collected fax numbers over time from a variety of sources in addition to purchasing numbers through third parties, but there was still a finding that the plaintiff failed to meet the predominance burden, because “there is no class-wide proof available to decide consent and only mini-trials can determine this issue.”
Here, defendant’s testimonial evidence was stronger than the evidence presented in the prior matter. Furthermore, the court found that the defendant here did not engage in fax-blasting and did not hire a third party to transmit faxes on its behalf.
Instead, the unrebutted testimony was that faxes were sent to lists of numbers developed exclusively by the defendant’s sales force via a practice that included first obtaining consent. The defendants also testified that it reached out to contacts to confirm that they desired to receive marketing materials. Thus, the defendant’s internal consent protocols were more than mere speculation and surmise.
Ultimately, the court found that plaintiff was unable to proves, on a class-wide basis, whether others who received the faxes had consented. Distinguishing between those class members to whom unsolicited faxes were sent and those who actually provided consent would predominate the case, requiring “myriad mini-trials” and a “painstaking sorting process” for each of the alleged members of the class.
The plaintiff’s motion for class certification was denied. The court rejected its argument that the defendant could not rely on testimonial evidence alone when the testimony was unrebutted.
Takeaway: Defendants can defeat class certification with evidence regarding telemarketing compliance and best practices. Consult an FTC advertising compliance lawyer for assistance developing best practice documentation and protocols.
The matter is Sawyer v. KRS Biotechnology (S.D. Oh. May 30, 2018).
Richard B. Newman is a telemarketing compliance attorney at Hinch Newman LLP.
Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.