United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
M. Durkin United States District Judge
Alpha Tech Pet, Inc. alleges that defendants LaGasse LLC,
Essendant Management Services LLC, Essendant Co., and United
Stationers, Inc. (“defendants”) sent Alpha Tech
eight unsolicited fax advertisements in violation of the
Telephone Consumer Protection Act of 1991
(“TCPA”), as amended by the Junk Fax Protection
Act of 2005. R. 1. Alpha Tech also makes class allegations on
behalf of others similarly situated. In December 2016, the
Court consolidated Alpha Tech's case with another case
pending in this district for pre-trial proceedings. R. 45.
The other case, Craftwood II, Inc. et al. v. Essendant,
Inc., No. 16-cv-4321, asserts the same claims against
Essendant and effectively seeks to represent the same
Alpha Tech and Craftwood plaintiffs
(“plaintiffs”) seek to certify classes of all
persons and entities to whom Essendant sent fax transmissions
from May 1, 2011 to May 1, 2015, which would implicate
approximately 1.5 million faxes in 725 separate transmissions
to nearly 24, 000 unique fax numbers. R. 71-2 ¶ 35; R.
71-3 ¶ 5. Plaintiffs propose dividing the class into
three categories based on the content of the faxes. R. 96 at
4-5. Discovery closed a number of months ago, and on August
23, 2017, this Court adopted Magistrate Judge Valdez's
August 1, 2017 ruling denying plaintiffs' motion to
reopen discovery. R. 93.
before the Court are two motions by defendants: (1) a motion
to deny class certification (R. 70); and (2) a motion for
judgment on the pleadings on portions of plaintiffs'
individual claims (R. 67). The central basis of both motions
is a recent change in the law. In March 2017, a split panel
of the D.C. Circuit struck down a rule from the Federal
Communications Commission (“FCC”) rule requiring
both unsolicited and solicited faxes to include opt-out
notices with certain language. The D.C. Circuit held this
rule, known as the “Solicited Fax Rule, ”
“unlawful to the extent that it requires opt-out
notices on solicited faxes.” Bais Yaakov of Spring
Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017). It
found that the TCPA's clear statutory text reached only
unsolicited fax advertisements, meaning that the FCC did not
have the authority to promulgate a rule regarding solicited
faxes. Id. at 1082 (“Congress drew a line in
the text of the statute between unsolicited fax
advertisements and solicited fax advertisements.”).
Bais Yaakov was decided earlier this year, several
courts have found class certification inappropriate in TCPA
cases where, “to determine whether any putative member
of the proposed class had a TCPA claim, the Court would first
be required to determine whether that proposed class member
‘solicited' the faxes it received.”
Brodsky v. HumanaDental Ins. Co., 2017 WL 3704824,
at *10 (N.D. Ill. Aug. 28, 2017) (Blakey, J.); accord
Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare,
Inc., 863 F.3d 460, 467-74 (6th Cir. 2017), as
corrected on denial of reh'g en banc (Sept. 1,
2017). This Court likewise finds Bais Yaakov binding
and the individualized consent issues created by Bais
Yaakov dispositive of plaintiffs' class
certification claims. The Court therefore grants
defendants' motion to deny class certification.
motions for judgment on the pleadings are technically
improper when they pertain only to parts of claims, the Court
denies defendants' motion for judgment on the pleadings.
But the legal principles set forth in this opinion regarding
the impact of Bais Yaakov apply equally to
plaintiffs' remaining, individual claims.
I. Motion to Deny Class Certification
Although “in most cases involving a proposed class, it
is the plaintiffs who move for class certification . . .
under Fed.R.Civ.P. 23(c)(1), either party may ask the court
to determine whether class certification is
appropriate.” Blihovde v. St. Croix Cnty.,
Wis., 219 F.R.D. 607, 612 (W.D. Wis. 2003) (citing
Cook Cnty. College Teachers Union v. Byrd, 456 F.2d
882, 885 (7th Cir. 1972) (“One opposing a class action
may move for an order determining that the action may not be
maintained as a class suit.”) & 7AA Fed. Prac.
& Proc. Civ. § 1785 (3d ed.) (“Either
plaintiff or defendant may move for a determination of
whether the action may be certified under Rule
certified, a putative class must satisfy the four
prerequisites of Federal Rule of Civil Procedure 23(a):
numerosity, commonality, typicality, and adequacy of
representation. Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The
action also must satisfy at least one of the three
subsections of Rule 23(b). Id. Here, plaintiffs seek
certification under Rule 23(b)(3), R. 98, which requires a
finding that “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 the fair and efficient
adjudication of the controversy.” “Plaintiffs
bear the burden of showing that a proposed class satisfies
the Rule 23 requirements.” Messner, 669 F.3d
at 811. “The Rule does not set forth a mere pleading
standard”; rather, the plaintiff must satisfy Rule 23
“through evidentiary proof.” Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013). “Such an analysis
will frequently entail ‘overlap with the merits of the
plaintiff's underlying claim, '” id.
at 33-34 (quoting Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351 (2011)), but “[m]erits questions may
be considered . . . only to the extent . . . that they are
relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Amgen Inc. v.
Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466
courts have “broad discretion” when determining
whether a proposed class satisfies Rule 23. Howland v.
First Am. Title Ins. Co., 672 F.3d 525, 528 (7th Cir.
2012); see also Dukes, 564 U.S. at 369
(“[M]ost issues arising under Rule 23 . . . [are]
committed in the first instance to the discretion of the
argue plaintiffs cannot show that their proposed classes meet
Rule 23's requirements in light of the individualized
consent issues resulting from the D.C. Circuit's decision
in Bais Yaakov. Plaintiffs respond that Bais
Yaakov is not governing law in this circuit, and in any
event, individualized consent issues do not defeat class
certification (which they seek further discovery to help
show). The Court disagrees on both fronts.
Impact of Bais Yaakov
make three arguments as to why Bais Yaakov is not
controlling or relevant here. First, plaintiffs
claim that Bais Yaakov is binding only in the D.C.
Circuit and not in this Circuit. The Sixth Circuit in
Sandusky explained why this is not correct. In
Bais Yaakov, the Judicial Panel on Multidistrict
Litigation (“JPML”) consolidated in the D.C.
Circuit several petitions for review originally filed in
multiple courts of appeals seeking to set aside the FCC's
Solicited Fax Rule. See Sandusky, 863 F.3d at 464,
467. “Once the [JPML] assigned petitions challenging
the Solicited Fax Rule to the D.C. Circuit, that court became
‘the sole forum for addressing . . . the validity of
the FCC's rule.'” Id. at 467 (quoting
Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057
(9th Cir. 2008)). “And consequently, its decision
striking down the Solicited Fax Rule ‘became binding
outside of the [D.C. Circuit].'” Id.
(quoting Peck, 535 F.3d at 1057 (holding that
Eleventh Circuit's decision challenging FCC order is
binding in the Ninth Circuit)).
Sandusky court further explained, “[t]his
result makes sense in light of the procedural mechanism
Congress has provided for challenging agency rules.
See 28 U.S.C. §§ 2112, 2342-43. By
requiring petitioners to first bring a direct challenge
before the FCC, the statute allows this expert agency to
weigh in on its own rules, and by consolidating petitions
into a single circuit court, the statute promotes judicial
efficiency and ensures uniformity nationwide.”
Id.; accord CE Design Ltd. v. Prism Bus. Media,
Inc., 606 F.3d 448, 450 (7th Cir. 2010) (consolidation
of petitions into a single circuit court “allows
uniform, nationwide interpretation” ...