Last week,the Fifth Circuit overturned a district court decision granting class certification status in a case involving alleged violations of the Telephone Consumer Protection Act (TCPA). The Court decided that the possibility of the large litigation breaking down into separate “mini-trials” was too great to allow it to proceed as a class action. The decision highlights a current trend among courts: determining that cases involving consumer protection claims are too individualized to be certified as class actions.
The TCPA bans the sending of unsolicited advertising materials from one fax machine to another without the consent of the recipient. The defendant in the case, BioPay, allegedly sent over 4,000 fax messages to potential customers without their permission. One such customer, fed up with the constant humming of the busy fax machine, filed a class action lawsuit in federal court.
BioPay argued that class certification would be improper because the court would have to determine whether each and every recipient of the faxes gave their individual consent. The Fifth Circuit agreed that the individualized nature of consent formed the central theme of the class action. While the Court concluded that not all TCPA claims were unsuitable for class certification, this particular case required an individualized determination as to whether or not individual class members gave consent.
Similar issues related to class certification in the context of consumer protection matters have arisen in other circuits as well. Earlier this year, the Eighth Circuit reversed a district court ruling granting class certification for a class of heart valve recipients that claimed violations of two Minnesota consumer protection statutes. The Court held that individualized determinations were necessary to determine which class members received which types of representations about the product. Along the same lines, the Second Circuit recently reversed class certification status for a class of smokers who purchased “light” cigarettes, claiming they were deceived into thinking “lighter” meant “healthier.” The Court noted that each plaintiff in the class would need to show they individually relied on the defendants’ deceptions in order to prevail.
Clearly class action certification is an emerging hot topic in the area of consumer protection. Whether consumers relied upon an alleged misrepresentation and whether this can be shown on a class-wide basis is a key issue that counsels in many cases seeking early and limited discovery on the issue before full-blown discovery on the merits. Stay tuned for more developments. . .
