Abuse of Discretion TCPA Violation Class Certification.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Lawrence S. Brodsky, et al. v. HumanaDental Insurance Co., et al.

Case No.: 17-3067; 17-3506

Officials: WOOD, Chief Judge, and FLAUM and KANNE, Circuit Judges.

Focus: Abuse of Discretion TCPA Violation Class Certification

These appeals, which we have consolidated for purposes of disposition, both concern the Federal Communication Commission's "Solicited Fax Rule." Despite the decline and fall of the fax machine, litigation continues between fax advertisers and unwilling recipients of their messages. Behind all this is the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227, as amended by the Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359, and as implemented through FCC regulations. The lead plaintiffs in our casesLawrence Brodsky and Alpha Tech Pet, Inc. received faxed advertisements that did not comply (so they said) with the TCPA and the FCC's Solicited Fax Rule. Each plaintiffwanted to pursue litigation not just individually, but as the head of a class. And in each case, the district court refused to certify the proposed class, largely on the authority of the D.C. Circuit's decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) (Kavanaugh, J.). Our...