On October 24, 2018, Judge Timothy Hillman of the District of Massachusetts denied the plaintiff’s motion for class certification because the defendant presented adequate evidence that the class members consented to receiving fax advertisements or had an active, ongoing relationship with the defendant.  Bais Yaakov of Spring Valley v. ACT, Inc., No. 12-cv-40088-TSH, 2018 WL 5281746 (D. Mass. Oct. 24, 2018).  The plaintiff is a private high school while the defendant provides student assessment services, including administering the ACT test. The defendant sent fax advertisements to high schools, such as advertisements showing the registration deadlines for upcoming ACT tests.

The plaintiff moved to certify two nationwide classes.  The first class comprised all people to whom the defendant sent or caused to be sent a fax advertisement without an opt-out notice.  Judge Hillman held that common issues of law or fact did not predominate over individual questions, as Rule 23(b)(3) requires.  The defendant met its burden of showing “that affirmative defenses present individual inquiries precluding a finding of predominance.”  Id. at *4.  He found that the predominant issue would be individual consent because the deposition testimony and declarations showed that many schools requested or consented to receiving faxes and the defendant had established and ongoing relationships with thousands of schools.  Id.  The defendant presented declarations from seventy-eight schools.  Id. at *5.  Further, the evidence of consent varied because the schools contacted the defendant through multiple methods, such as telephone, mail, email, fax, and online forms.  Id.  Judge Hillman contrasted this situation from one where the members gave their consent in a standard form.  Id.  Therefore, if the court certified the class, the court would have to “parse through each unique relationship to filter out those members to whom Defendant is not liable.”  Id.

The second class consisted of all people to whom the defendant sent or caused to be sent an unsolicited fax advertisement without an opt-out notice.  Judge Hillman denied the plaintiff’s motion to certify this class because it is a “fail-safe class,” which means that “class membership is defined by whether or not members have a valid claim.”  Id. at *6.  Judge Hillman declined to refine the class definition to include solicited fax advertisements because it would fail for the same reasons as the first class.  Id.