Defendant’s Testimonial Evidence of Obtaining Consent Precludes Class Certification

TCPA Connect

In a victory for a Telephone Consumer Protection Act (TCPA) defendant, U.S. Magistrate Judge Stephanie K. Bowman of the Southern District of Ohio recommended to the trial judge that a plaintiff’s motion for class certification be denied, relying primarily on evidence showing the defendant regularly obtained consent prior to sending fax advertisements. That case is Sawyer v. KRS Biotechnology, Inc.

Dr. William Sawyer operated a primary care practice in Sharonville, Ohio. On Oct. 9, 2015, his office received an unsolicited one-page advertisement from KRS Biotechnology, a Florida-based compounding pharmacy. The fax promoted KRS’ IV infusion sets. Sawyer filed a putative class action alleging violations of the TCPA and sought to certify a class of other fax recipients.

KRS’ telecommunications service provider produced a call and fax log for the defendant that included the number of fax transmissions, the phone numbers dialed and whether the transmissions were successful. The log reflected the transmission of about a dozen faxes on most days. But on a few days in 2015, KRS transmitted tens of thousands of faxes. The largest instances of fax blasting occurred on Oct. 8 and 9, 2015, when the log shows KRS transmitting a total of 34,773 faxes.

Admitting liability with regard to Sawyer, KRS argued that the fax sent to the plaintiff was in violation of its established business practices and claimed that it did not send unsolicited faxes to any parties other than Sawyer.

Relying heavily on the U.S. Court of Appeals for the Sixth Circuit’s 2017 decision in Sandusky Wellness Center, Inc. v. ASD Specialty Healthcare, Inc., Judge Bowman recommended that class certification be denied.

Judge Bowman’s analysis focused on Federal Rule of Civil Procedure 23(b)(3), the predominance requirement, noting that the Sixth Circuit’s Sandusky decision “clarified that where a defendant has demonstrated more than a ‘speculative’ dispute about whether some portion of those who received the fax consented to receipt, class certification should be denied.”

Siding for the defendant, she wrote: “[T]he fax log evidence is insufficient to carry Plaintiff’s affirmative burden to show predominance because: (a) Defendant has offered testimony that its practice was to send faxes only to those who ‘solicited’ or gave permission/consent to the receipt of faxes, and neither the fax log nor any other evidence rebuts that evidence; and (b) the fax log does not reflect precisely what was faxed to each of the 34,773 numbers.”

Significantly, the defendant’s vice president of sales testified that KRS has never purchased any lists of fax numbers since at least 2013, when he began working for the company. Instead, KRS obtains the fax numbers of potential customers by asking for permission. Similarly, the chief operating officer testified that although no formal records were kept concerning the issue of consent, KRS would call officers, doctors and hospitals to ask if they would be interested in the company’s products. Trade shows were also a source of leads, he said.

Both employees were “emphatic” that KRS does not send faxes unless given permission by the contact. The company also explained that it sent between one and 10,000 of the Infusion Kit Fax ad received by Sawyer, but that his was the only unsolicited fax sent. The remainder of the 34,773 faxes over the two-day period were other “business communications” and not ads at all, the defendant said.

“Thus, KRS provided unrebutted evidence that its call center employees had an established business practice of obtaining consent, despite the lack of documentation to verify their calls or consent to fax,” the court wrote. “[T]he evidence presented by Defendant demonstrates that issues concerning individual consent would predominate over any other issues in this case.”

In contrast, Sawyer “offered no class-wide evidence suggesting a lack of consent,” the court said. “KRS has produced ‘concrete evidence of consent’ that the majority of the faxes sent on October 8–9, 2015 were not ‘unsolicited,’ but instead were sent to (1) established or potential customers who ‘solicited’ the advertisements; (2) others who requested that KRS fax other business-related or prescription-related faxes (not advertisements); or (3) fax numbers where the sales member first contacted the person or entity to request consent prior to sending the fax. In short, KRS has provided evidence that the fax received by Sawyer in this case was an aberration or exception to the Defendant’s established business practice.”

The plaintiff appeared to challenge the type of evidence proffered by KRS, arguing that deposition testimony and an affidavit were insufficient to stand in the way of class certification when compared with the evidence presented in Sandusky: “However, the undersigned finds no basis for distinguishing between the probative value of the documentary evidence presented in Sandusky Wellness and the testimonial evidence offered here, at least at the class certification level where Plaintiff must affirmatively show predominance under Rule 23(b)(3),” Judge Bowman wrote. Consequently, since the Federal Communications Commission (FCC) has made clear that evidence of established business practices suffices to show a company has complied with the agency’s fax rules, she denied the motion for class certification.

“There is simply no way for Plaintiff to get around the thorny issue of proving, on a class-wide basis, whether others who received the Infusion [Kit] Fax had consented to receipt of such materials through ‘express invitation or permission, in writing or otherwise,” the court said. “As in Sandusky Wellness, distinguishing between those class members to whom ‘unsolicited’ faxes were sent and those who should be deemed to have provided consent would be ‘no hypothetical scenario,’ but would instead predominate this case, requiring ‘myriad mini-trials’ and a ‘painstaking sorting process’ for each of the alleged members of the class.”

To read the report and recommendation in Sawyer v. KRS Biotechnology, Inc., click here.

Why it matters: The defendant was able to successfully defeat the plaintiff’s motion for class certification by establishing—through unrebutted testimonial evidence from its own employees—that it had an established business practice of obtaining consent prior to sending fax ads. Even though the defendant had no written policy in place and produced no documentation with regard to consent, the testimonial evidence overcame the plaintiff’s reliance on the fax log records demonstrating that more than 34,000 faxes were sent over a two-day period. Thus, this case serves as a rare example of where testimony alone seemingly won out over printed evidence.



pursuant to New York DR 2-101(f)

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