In Sawyer v. KRS Biotechnology, 2018 WL 2425780 (S.D. Ohio 2018), Magistrate Judge Bowman denied class certification in a junk-fax TCPA class action.   Although the defendant’s V.P. Of sales was unfamiliar with the TCPA before the litigation and the defendant had no formal records documenting individualized consent to send the faxes, Judge Bowman found that individual questions of consent predominated.

In addition to being permitted by FCC Rules, KRS’s evidence bears more than a passing resemblance to that presented by the defendant in Gene & Gene v. BioPay, LLC, the Fifth Circuit case that is heavily cited by Sandusky Wellness. There too, the defendant’s employees kept no records and could not distinguish which recipients gave express consent and which did not, but the record reflected they had collected fax numbers over time from a variety of sources in addition to purchasing numbers through third parties, B2B and InfoUSA.17 The Fifth Circuit still found 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.” 541 F.3d at 328-329.  In some respects, Defendant’s testimonial evidence is stronger than the evidence presented in Sandusky Wellness. While the vast majority of junk fax cases (including Sandusky Wellness) involve businesses that fax-blast indiscriminately to purchased lists from third parties,18 KRS has never engaged in that particularly fraught practice. Nor has KRS ever hired a third party to transmit faxes on its behalf. Instead, the unrebutted testimony is that faxes were sent to lists of numbers developed exclusively by the Defendants’ 18-20 member sales force over a period of years, through a custom and practice that would favor a finding of consent-to-fax by the overwhelming majority of the listed fax recipients. As in Sandusky Wellness, the testimonial evidence offered by the Defendant sets it apart from Bridging Communities, in which the defendant offered nothing more than “speculation and surmise” that some hypothetical recipient may have consented. Bridging Cmtys., 843 F.3d at 1125. 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 Set Fax had consented to receipt of such materials through “express invitation or permission, in writing or otherwise.” 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. Accord, Sandusky Wellness, 863 F.3d at 469-470.