Ruth Ann Cooper, DPM v. Neilmed Pharmaceuticals, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RUTH ANN COOPER, D.P.M., on

behalf of herself and all others

similarly situated,

Case No. 1:16-cv-945

Plaintiff, JUDGE DOUGLAS R. COLE

v.

NEILMED PHARMACEUTICALS,

INC.,

Defendant.

OPINION AND ORDER

Plaintiff Dr. Ruth Ann Cooper contends that Defendant NeilMed

Pharmaceuticals, Inc., violated the Junk Fax Prevention Act of 2005 when it sent a

fax offering product samples to over 50,000 recipients, including her. Seeking to

vindicate her own rights, as well as the rights of all others who received the same

fax, Dr. Cooper now moves the Court to certify this matter as a class action under

Federal Rule of Civil Procedure 23. (See Mot. for Class Certification, Doc. 59). For

the reasons explained more fully below, the Court finds that Dr. Cooper has failed

to show predominance, and thus the Court DENIES Dr. Cooper’s Motion for Class

Certification (Doc. 59).

BACKGROUND

The factual underpinnings of this dispute are straightforward. NeilMed

Pharmaceuticals, Inc. (“NeilMed”) is a purveyor of sinus rinses and other first-aid

products. NeilMed sent a fax (the “P3990 Fax”) to some 54,000 unique fax

numbers—numbers belonging mostly to physicians and physicians’ offices—

between August 24 and 25, 2016.1 (Mot. for Class Certification (“Mot.”), Doc. 59,

#495–96). The P3990 Fax told recipients that NeilMed wanted to send them

“product samples,” and asked recipients to “verify [their] address and confirmation

for samples” by filling in their contact information and faxing the form back to

NeilMed. (See NeilMed Fax, Compl. Ex A, Doc. 1-1, #16). It also invited recipients to

opt out of future faxes by checking a “remove my name” box and returning the fax.

(Id.).

Less than a month after receiving the P3990 Fax, Dr. Cooper initiated this

putative class action, alleging that NeilMed’s transmission of the fax violated the

Telephone Consumer Protection Act of 1991, as amended by the Junk Fax

Prevention Act of 2005, 47 U.S.C. § 227 (“TCPA”).2 In broad terms—and as

discussed more thoroughly below—that statute makes it unlawful “to send, to a

telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(C). Dr.

Cooper contends that the P3990 Fax is just such an “unsolicited advertisement”;

“unsolicited” because NeilMed did not obtain Dr. Cooper’s “prior express invitation

or permission” before sending it, and an “advertisement” because NeilMed directly

1 NeilMed sent a first fax on August 24 to approximately 53,042 recipients. After a NeilMed

employee realized the first fax contained an incorrect return fax number, NeilMed sent a

substantially identical follow-up fax the next day to approximately 53,711 recipients. Dr.

Cooper’s proposed expert compared the fax logs from both transmissions and determined

that, between the two, the P3990 Fax was successfully transmitted, in one version or

another, to 54,938 unique fax numbers—the number the Court recites above. NeilMed does

not dispute this method of calculating the putative class size, and thus the Court accepts it

for purposes of this Opinion.

2 Although this case focuses on the “Junk Fax” provisions of the TCPA added by

amendment in 2005, the Court will refer to the statute generally as the “TCPA” for

simplicity.

sells and profits from the products mentioned in the P3990 Fax. (See Compl., Doc. 1,

#3–4); see also 47 U.S.C. § 227(a)(5) (defining “unsolicited advertisement”).

Shortly after the action was filed, NeilMed moved to dismiss the Complaint

for failure to state a claim. (See Doc. 14). The then-assigned Judge denied NeilMed’s

Motion in September 2017. (See Order, Doc. 27). That Judge then stayed the action

for about 8 months in 2019, awaiting the outcome of a potentially relevant Supreme

Court decision. After the court lifted that stay, Dr. Cooper filed this motion for class

certification, seeking to certify a class of “[a]ll persons/entities who successfully

received the P3990 Fax on August 24, 2016 or August 25, 2016 and have not signed

a NeilMed Declaration.” (Doc. 59, #512). NeilMed responded in opposition (Doc. 66)

on April 21, 2020, and Dr. Cooper replied in support (Doc. 70) on May 8, 2020. The

matter was transferred to the undersigned on November 20, 2020. The class

certification motion is now fully briefed and before the Court.

LEGAL STANDARD

The class action is a unique mechanism in civil litigation. It represents “an

exception to the usual rule that litigation is conducted by and on behalf of the

individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348

(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). To justify a

departure from the named-parties-only rule, though, a putative class representative

must make certain showings. Under Federal Rule of Civil Procedure 23(a), the

named plaintiff(s) must show that: (1) the class is so numerous that joinder of all

members is impracticable; (2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or

defenses of the class; and (4) the representative parties will fairly and adequately

protect the interests of the class. Fed. R. Civ. P. 23(a). These requirements—

commonly known as numerosity, commonality, typicality, and adequacy—limit

abuse of the class action mechanism by ensuring, among other things, that the class

claims are “fairly encompassed by the named plaintiff’s claims.” Wal-Mart, 564 U.S.

at 349 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)).

But compliance with Rule 23(a) alone does not suffice to carry a case across

the class-certification finish line. Rather, beyond satisfying Rule 23(a), the putative

class must also comply with one of the provisions of Rule 23(b). Here, Dr. Cooper

seeks certification under Rule 23(b)(3). (Mot., Doc. 59, #497). Rule 23(b)(3) is

perhaps the most flexible of the 23(b) pathways, as it “allows class certification in a

much wider set of circumstances” than (b)(1) or (b)(2). Wal-Mart, 564 U.S. at 362.

This flexibility, however, is counterbalanced by “greater procedural protections.” Id.

These additional procedural protections are twofold.

First, under Rule 23(b)(3), the court must “find[] that the questions of law or

fact common to class members predominate over any questions affecting only

individual members.” This “predominance” inquiry is similar to, though “more

stringent” than, Rule 23(a)(2)’s “commonality” requirement, with the former (i.e.,

predominance) said to “subsume[]” or “supersede[]” the latter (i.e., commonality).

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 609 (1997). In other words, “Rule

23(b)(3)’s predominance criterion is even more demanding than Rule 23(a)[‘s

commonality requirement].” Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013)

(citing Amchem, 521 U.S. at 623–24).

Second, the court must find that “a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3). This “superiority” requirement aims to “achieve economies of time, effort,

and expense, and promote ... uniformity of decision as to persons similarly situated,

without sacrificing procedural fairness or bringing about other undesirable results.”

Amchem, 521 U.S. at 615 (quoting Fed. R. Civ. P. 23 adv. comm. n. to 1966 amend.).

Rule 23(b)(3) lists four non-exhaustive factors “pertinent” to the

“predominance” and “superiority” analyses. Two are potentially relevant here—“the

likely difficulties in managing a class action” and “the class members’ interests in

individually controlling the prosecution or defense of separate actions.” See Fed. R.

Civ. P. 23(b)(3)(A)–(D).

Importantly, the question of whether a class may be appropriately certified is

separate from whether the putative class, as defined, will succeed on the merits.

That said, “it may be necessary for the court to probe behind the pleadings before

coming to rest on the certification question.” Comcast, 569 U.S. at 33 (quoting Wal-

Mart, 564 U.S. at 350). Indeed, the Supreme Court has directed courts to undertake

a “rigorous analysis” before certifying a class—an analysis that “frequently entail[s]

‘overlap with the merits of the plaintiff’s underlying claim.’” Id. at 33–34 (quoting

Wal-Mart, 564 U.S. at 350). While this “rigorous analysis” might involve some

consideration of the merits, though, courts do not have “license to engage in free-

ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans

& Tr. Funds, 568 U.S. 455, 466 (2013).

At bottom, a “district court has broad discretion to decide whether to certify a

class. [The Sixth Circuit] has described its appellate review of a class certification

decision as ‘narrow,’ and as ‘very limited.’” Glazer v. Whirlpool Corp. (In re

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.), 722 F.3d 838, 850 (6th

Cir. 2013) (citations omitted).

LAW AND ANALYSIS

As described above, Dr. Cooper must clear six hurdles to succeed in her

motion for class certification: Rule 23(a)’s requirements of numerosity,

commonality, adequacy, and typicality, as well as Rule 23(b)(3)’s requirements of

predominance and superiority.3 Of these, NeilMed meaningfully contests only three:

adequacy and typicality under Rule 23(a), and predominance under Rule 23(b)(3).

Because the Court concludes that the predominance inquiry is dispositive, it begins

and ends its analysis there.

3 Rule 23(b)(3) also contains an “implied ascertainability” requirement. See Sandusky

Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 471 (6th Cir. 2017) (“[A]

‘class definition must be sufficiently definite so that it is administratively feasible for the

court to determine whether a particular individual is a member of the proposed class.’”

(quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537–38 (6th Cir. 2012)). In the

Junk Fax context, the Sixth Circuit has generally considered fax logs listing transmission

recipients—which are available in this case—to satisfy the requirement. See id.

A. Dr. Cooper Has Failed To Demonstrate That Common Issues Of Fact

Or Law Would Predominate Were This Case To Proceed To Trial As A

Class Action.

Predominance “tests whether proposed classes are sufficiently cohesive to

warrant adjudication by representation.” Amchem, 521 U.S. at 623. “To meet the

predominance requirement, a plaintiff must establish that issues subject to

generalized proof and applicable to the class as a whole predominate over those

issues that are subject to only individualized proof.” Young v. Nationwide Mut. Ins.

Co., 693 F.3d 532, 544 (6th Cir. 2012) (quoting Randleman v. Fid. Nat. Title Ins.

Co., 646 F.3d 347, 352–53 (6th Cir. 2011)). But “[a] plaintiff class need not prove

that each element of a claim can be established by classwide proof.” Whirlpool

Corp., 722 F.3d at 858 (citing Amgen, 568 U.S. at 468). Indeed, “[a] class may be

certified based on a predominant common issue even though other important

matters will have to be tried separately, such as damages or some affirmative

defenses peculiar to some individual class members.” Hicks v. State Farm Fire &

Cas. Co., 965 F.3d 452, 460 (6th Cir. 2020) (citation and internal quotation marks

omitted).

In deciding whether individual issues predominate over common questions, a

court cannot rely on mere “speculation and surmise” that individual issues may

arise. Bridging Cmtys. Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1125 (6th Cir.

2016) (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir.

2000)). Instead, a court “should consider only those issues that would likely arise if

an individual class member’s claims were being adjudicated on the merits.” Bais

Yaakov of Spring Valley v. ACT, Inc., 12 F.4th 81, 89 (1st Cir. 2021) (emphasis

added). “In so doing, a court considers ‘the probable course of the litigation’ so as to

‘formulate some prediction as to how specific issues will play out in order to

determine whether common or individual issues predominate.’ Id. (quoting

Mowbray, 208 F.3d at 298); see also Sandusky Wellness Ctr., LLC v. ASD Specialty

Healthcare, Inc., 863 F.3d 460, 468 (6th Cir. 2017) (“[T]he key is to ‘identify[] the

substantive issues that will control the outcome,’ in other words, courts should

‘consider how a trial on the merits would be conducted if a class were certified.’”

(quoting Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318, 326 (5th Cir. 2008)).

NeilMed argues Dr. Cooper has failed to establish the predominance required

by Rule 23(b)(3) for two reasons. First, it argues that many of the putative class

members have, in one way or another, consented to receiving faxes similar to and

including the P3990 Fax, thereby defeating any TCPA claim based on unsolicited

advertisement as to that putative class member. (Mem. in Opp’n to Mot. for Class

Certification (“Opp’n”), Doc. 66, #1546). In NeilMed’s view, identifying which

individuals gave permission on the facts here is an “inherently individualized”

inquiry, “essentially requir[ing] a mini-hearing on the merits of each case.” (See id.

at #1548). Second, NeilMed argues that “individual issues as to what type of

equipment class members used to receive faxes will predominate over common

issues.” (Id. at #1554). Identifying the equipment used by each putative class

member is critical, according to Neilmed, because “online fax service[s] that

effectively receive[] faxes ‘sent as email over the Internet’ … fall[] outside the scope

of the [TCPA’s] statutory prohibition.” (Id.). Because the Court concludes that

NeilMed succeeds on the first of these two arguments, the Court declines to consider

the latter.

1. NeilMed Has Adduced Sufficient Evidence Supporting Its

Affirmative Defense Of Prior Express Invitation Or Permission,

And Dr. Cooper Has Failed To Offer Generalized Proof To The

Contrary.

NeilMed argues mainly that the Court should deny class certification because

individual issues relating to consent will overwhelm issues common to the class.

That argument starts on strong legal footing, as consent is integral to

determining NeilMed’s TCPA liability. The TCPA, as amended by the Junk Fax

Prevention Act, makes it unlawful to “send … an unsolicited advertisement” unless

certain conditions are met. 47 U.S.C. § 227(b)(1)(C) (emphasis added). An

“unsolicited advertisement” is an advertisement “which is transmitted to any

person without that person’s prior express invitation or permission.” Id. § 227(a)(5).

Though the invitation or permission must be “express,” the Act explains that it may

be provided “in writing or otherwise,” id., which includes oral permission. See

Sawyer v. KRS Biotechnology, Inc., No. 1:16-CV-550, 2018 WL 2425780, at *11 (S.D.

Ohio May 30, 2018), report and recommendation adopted sub nom. Sawyer v. KRS

Glob. Biotechnology, Inc., No. 1:16-CV-550, 2018 WL 4214386 (S.D. Ohio Sept. 5,

2018) (“[P]ermission to send fax advertisements may be ‘granted in writing or

orally.’” (quoting Rules and Regulations Implementing the Telephone Consumer

Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967,

25971)). Thus, any person who expressly invited the P3990 Fax does not have a

viable TCPA claim against NeilMed, whether or not the fax was an “advertisement.”

While consent is an important issue to liability, the question at the

certification stage is limited to whether the consent issue prevents Dr. Cooper from

showing predominance. The Court’s consideration of that issue begins with a

threshold matter—identifying which party bears the burden of proof at this stage of

litigation and then considering how that burden affects the predominance analysis.

The parties nominally disagree both on where to place the burden of proof

and the practical effect of that placement, but their disagreement is more in tone

than substance. Both parties ultimately agree (or at least do not seriously dispute)

two propositions. This first of these, is that, as the party seeking certification, Dr.

Cooper retains the burden of establishing that Rule 23(b)(3)’s requirements are

met—which includes the need to show that “questions of law or fact common to

class members predominate over” questions affecting only individuals. See

Sandusky Wellness, 863 F.3d at 466–67 (“It is the party seeking class certification

… that bears the burden of ‘affirmatively demonstrat[ing]’ compliance with Rule

23.” (quoting Wal-Mart, 564 U.S. at 350)). And the second is that, on the merits of

consent, NeilMed shoulders the burden of proving prior express invitation or

permission because consent is an affirmative defense to TCPA liability. True Health

Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018) (“‘[E]xpress

consent’ is an affirmative defense to a claim brought under a provision of the TCPA

dealing with unsolicited telephone calls, and [] the defendant bears the burden of

proving such consent.”).4 Given the absence of serious dispute, the Court allocates

these respective burdens as the parties suggest.5

So what are the practical implications of that conclusion? The parties again

appear to disagree on the answer to that question. But, again, the disagreement is

largely superficial. Dr. Cooper, citing the Ninth Circuit’s opinion in True Health,

asserts that, because NeilMed “has the burden of proof on the permission defense,

this Court must consider [only] the permission defenses for which NeilMed has

actually presented evidence.” (Reply, Doc. 70, #53324). For its part, NeilMed

contends that the burden of establishing prior express invitation or permission is

“irrelevant” to the class certification question, but then concedes that True Health

held that a defendant must “actually advance[]” a consent defense and present

“evidence supporting it.” (Opp’n, Doc. 66, #1553).

The upshot of all that is this: at the certification stage, the Court may only

consider theories of consent NeilMed “has actually advanced and for which it has

presented evidence,” which it may do “in various ways.” True Health, 896 F.3d at

931–32 (citing Sandusky Wellness, 863 F.3d at 468–70). Conversely, the Court may

not consider “consent defenses that [NeilMed] might advance or for which it has

presented no evidence.” Id. (emphasis added) (citing Top Flite, 843 F.3d at 1125).

4 NeilMed offhandedly suggests that categorizing prior express permission as an affirmative

defense is erroneous “under basic principles of statutory interpretation,” (Opp’n, Doc. 66,

#1552), but it does not develop that argument any further, and the Court declines to

entertain it for purposes of this Opinion.

5 The Court will refer to NeilMed’s affirmative defense variously as “consent” “permission”

and “prior express invitation or permission.”

The parties needn’t have cited out-of-circuit precedent for that point, though,

as it follows directly from Sixth Circuit case law. Indeed, the Ninth Circuit’s True

Health decision, on which the parties rely, cites to Sixth Circuit precedent. See id.

In fact, the Sixth Circuit has considered this precise issue—whether and when

individualized questions of consent will preclude class certification in the TCPA

context—on two occasions. In one, it found class certification appropriate, and in the

other, it did not. In many ways, resolving the instant class certification motion

turns largely on determining which of those two cases is a better fit to the facts

here. Thus, the Court begins with a closer look at each.

First, in Bridging Communities Inc. v. Top Flite Financial Inc., 843 F.3d 1119

(6th Cir. 2016), the defendant, Top Flite, had paid a third-party “fax-blasting”

service to send advertisements to more than 4,000 fax numbers; the third party had

in turn purchased these fax numbers from yet another company. Id. at 1122. In

resisting class certification, the defendant argued that the affirmative defense of

consent would raise individualized factual inquiries that would overwhelm issues

common to the class—that is, the defendant argued that, because consent is an

individualized issue, plaintiff could not establish predominance as Rule 23(b)(3)

requires. But the defendant did not offer any evidence to support the argument that

resolving consent would require individualized determinations. Rather, it merely

“raised the possibility” that some “class members might have given consent.” Id. at

1125.

The Sixth Circuit rejected that argument, noting that “mere mention of a

defense is not enough to defeat the predominance requirement of Rule 23(b)(3).” Id.

at 1126. Further, “speculation and surmise” about a possible consent defense did

not create a lack of predominance. Id. Rather, the court agreed with the plaintiff

that, on the facts at issue, the question of consent was subject to generalized proof.

In particular, because the “sender ‘obtained all of the fax recipients’ fax numbers

from a single purveyor of such information[,]’ there exist[ed] a ‘class-wide means of

establishing the lack of consent based on arguably applicable federal regulations.’”

Id. at 1126. Those regulations required the third-party sender to “take reasonable

steps to verify that the recipient agreed to make the number available for public

distribution.” Id. at 1125 (quoting 47 C.F.R. § 64.1200(a)(4)(ii)(B)). In light of those

regulations, the “common question” about prior consent was “whether the inclusion

of the recipients’ fax numbers in the purchased database indicated their consent to

receive fax advertisements.” Id. at 1126 (quoting Gene & Gene, 541 F.3d at 328).

Framed that way, “there [we]re … no questions of individual consent.’” Id.

A year after Top Flite, though, the Sixth Circuit held that “individualized

questions of consent” can “prevent[] common questions from predominating.”

Sandusky Wellness, 863 F.3d at 466. Although the Sandusky defendant had (like

the Top Flite defendant) purchased a list of contacts from a third-party data

provider, the Sandusky defendant later learned that some of the purchased contacts

“happened to be current or former customers.” Id. at 464–65. And in response to the

motion for class certification, the defendant produced 450,000 pages of various

forms, some of which the district court found “would demonstrate that these

customers … had given the requisite consent … to receive the fax.” Id. at 468.

Faced with these facts, the Sixth Circuit reasoned that, if the “class were

certified, the district court would be tasked with filtering out those members to

whom [the defendant] was not liable—those individuals who solicited the … fax.”

Id. at 468. And, in distinguishing the case before it from Top Flite, the court noted

that, unlike the plaintiff in Top Flite, the Sandusky plaintiff had not advanced a

viable theory of generalized proof demonstrating the absence of consent. Id. at 469–

70. Rather, although the case involved some questions common to the class,

“identifying which individuals consented would undoubtedly [have been] the driver

of the litigation.” Id. at 468.

Reading the two cases together, then, the rule appears to be something along

these lines: A defendant’s bare assertion that some of the putative class members

may have consented does not preclude class certification. But if the defendant is

able to offer some evidence supporting a consent defense, especially if the defendant

can do so as to a significant number of putative class members, and the plaintiff

fails to offer a viable class-wide mechanism for resolving the issue, that can

preclude certification.

The problem in applying that rule here, though, lies in determining how

much evidence the defendant must produce regarding consent, and how large the

number of putative class members must be, for the defendant to take advantage of

that rule. And on that front, Top Flite and Sandusky Wellness offer little guidance,

as they represent opposite extremes. In Top Flite, the defendant produced no

evidence of consent and relied on a single theory of showing consent that was

subject to generalized class-wide resolution, while the Sandusky Wellness defendant

produced hundreds of thousands of documents relating to consent that would have

necessitated thousands of individualized determinations about putative class

members. In short, neither case does much to identify the precise line where

consent becomes a sufficiently individualized issue to prevent class certification on

predominance grounds. And this is the true crux of the parties’ dispute here.

NeilMed contends it has “produced evidence” of consent. But Dr. Cooper argues that

NeilMed has produced none (or, at the very least, not enough).

NeilMed offers five methods by which it says it received prior express

invitation or permission from recipients before sending the P3990 Fax. Specifically,

it says it received consent from: (1) “hundreds of professionals known to its

founders”; (2) “in-person sales visits to doctors’ offices”; (3) “in-person interactions at

medical conventions”; (4) “direct inquiries from class members”; and (5) “return

faxes” sent by various physicians in response to product sample offers. (See Opp’n,

Doc. 66, #1546). The Court will consider in turn each category of evidence NeilMed

offers in support of these theories of consent.

In terms of evidentiary showing, the first four of these methods are

principally supported by NeilMed’s discovery responses6 and the deposition of

6 Although the discovery responses NeilMed relies on appear to be unsworn, Dr. Cooper

does not argue that the Court should not consider them for that reason at this juncture, and

the Court considers that argument waived. Moreover, the substance of the responses is

generally supported by the deposition testimony of Dr. Mehta.

Doctor Ketan Mehta, NeilMed’s CEO and founder. (Id.). In its discovery responses,

NeilMed asserts that it “obtained consent to send faxes … in a variety of ways since

the company was started in 2000.” (Def. Suppl. Resp. to Pl. Interrogs., Jacobson

Decl. Ex. A, Doc. 66-2, #1597). For example, it says “[m]any customers,” such as the

founder’s “fellow medical practitioners and their referrals,” “consented to receive

faxes orally.” (Id.). It says that some of these practitioners also submitted consent

declarations (discussed more thoroughly below), thereby “demonstrating that they

previously provided Defendant with prior express invitation or permission to send

them faxes.” (Id.).

NeilMed writes that it also obtained consent from customers and potential

customers at “trade shows and medical conventions throughout the United States

and worldwide.” (Id.). NeilMed “employs several full-time staff members” that

represent NeilMed at these events, and reports that “[f]rom 2012 through 2016

alone, [NeilMed’s] employees attended 521 tradeshows worldwide, including 343

tradeshows in the United States.” (Id.). At these shows, attendees “provided their

contact information and consent to receive faxes” by, for example, scanning a badge

at NeilMed’s booth, which “provide[d] Defendant with the registered participant’s

name and contact information.” (Id.).

Other attendees, according to NeilMed, personally visited NeilMed’s booth

and “provided their contact information, including their fax numbers[,] … by filling

out a form, so that they could receive samples, educational brochures and other

information.” (Id. at 1598). Others, still, left their business cards, including fax

numbers, “instead of taking the time to fill out a form by hand.” (Id.; see also Mehta

Dep., Doc. 61-1, #920 (testifying that NeilMed enters contact information into

NetSuite after a “doctor has given the business card for communication”)).

According to NeilMed, it is “standard practice within the medical professional

industry to expect a follow-up fax or email from a tradeshow exhibitor after a

medical professional has provided their name and contact information.” (Def. Suppl.

Resp. to Pl. Interrogs., Jacobson Decl. Ex. A, Doc. 66-2, #1598).

Dr. Mehta, NeilMed’s CEO, also provided further explanation on the topic.

Though he could not match any of the recipient fax numbers with a specific doctor,

Dr. Mehta insisted that he could do so if given names and photographs, as he knows

“thousands” of doctors. (Mehta Dep., Doc. 61-1, #934–35). In addition, although

Mehta did not know if one could determine from NetSuite (the software in which

the fax numbers are stored) when or how NeilMed obtained a fax number, Mehta

contends that at least some of the fax numbers were provided by doctors directly to

him, to his co-founder, or to other employees. (Id.). Mehta also testified that

NeilMed’s “salespeople over the years have confirmed [with doctors] that [it’s] okay

to communicate via fax.” (Id. at #917). Although he testified that he did not

personally obtain permission from all the P3990 Fax recipients, he “ha[s] no doubt”

that permission was received, because “that has been basically the practice for over

20 years.” (Id.).

These discovery responses and corroborating testimony from NeilMed’s

founder strongly suggest that NeilMed built its list of fax recipients organically over

several years, and that thousands of individual physicians and/or their offices

provided their contact information in a variety of ways and in different settings. As

a result, factual and legal questions abound as to whether these individual putative

class members in fact consented. This evidence thus favors a finding of a lack of

predominance. See Sawyer, 2018 WL 4214386, at *4 (denying class certification

where defendant’s employees testified that it “[did] not purchase fax lists from third

party brokers” but instead “‘slowly built a collection of fax numbers of potential

customers’” by attending trade shows, arranging meetings, contacting physicians,

and the like).

Beyond that, NeilMed separately offers some documentary records that

purportedly evince prior express invitation or permission. First, NeilMed points to

25 fax-back forms returned by physicians and physicians’ offices in response to

offers for NeilMed product samples. (Fax Back Forms, Jacobson Decl. Ex. B, Doc.

66-3, #1606–31). Most of these forms, like the fax-in-suit, offer free samples of

NeilMed products, which physicians can request by selecting certain products,

filling in their contact information (including fax number), and faxing back to

NeilMed. (See, e.g., id. at #1606, 1607, 1609). NeilMed says these forms show the

senders’ ongoing consent to receive faxes like the one here because the senders

voluntarily provided their fax numbers. (Opp’n, Doc. 66, #1546). Finally, NeilMed

offers 104 identical post-hoc declarations, including some from recipients of the

challenged fax, whereby the declarants aver that their “office provided [NeilMed]

with its … facsimile number,” understanding that “NeilMed would communicate”

via that number. (See, e.g., Consent Decl., Mot. Ex. G, Doc. 59-7, #677).

To be sure, these latter two forms of proving consent appear more susceptible

to generalized determinations; or, at least, it does not appear that they would lead

to an insurmountable number of individualized ones. Start with the faxback forms.

The samples provided all look at least generally similar. Thus, a determination that

a given form is, or is not, sufficient to provide consent may well apply across the

board, even if NeilMed could come up with more than the 25 such forms it has

provided to date. See McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 174 (S.D.

Cal. 2019) (“Consent can be resolved on a classwide basis if consent was obtained in

an identical or substantially similar manner from class members ….”) (emphasis

added); Johansen v. One Planet Ops, Inc., No. 2:16-CV-00121, 2018 WL 1558263, at

*5 (S.D. Ohio Mar. 5, 2018) (“Consent was given, if at all, through an online form.

When a TCPA defendant obtains consent in a uniform manner such as an online

form, consent can be resolved on a class-wide basis.” (quoting Toney v. Quality Res.,

Inc., No. 13 C 42, 2018 WL 844424, at *15 (N.D. Ill. Feb. 12, 2018))) (internal

citation and quotation marks omitted).

That said, the faxback forms admittedly are akin to the evidence that the

Sixth Circuit considered probative on predominance in Sandusky Wellness. See 863

F.3d at 469 (finding that “[i]dentifying solicited fax recipients through a form-by-

form inquiry” was “sufficiently individualized to preclude class certification”). And

the reason it did so is also instructive—even though the form issue could perhaps be

resolved conceptually on a class wide basis, the administrative difficulties involved

in implementing the decision still troubled the court. That is, even once the

determination was made as to the impact of the form, implementing that decision

would have required the parties (or the court) to “manually cross-check[] 450,000

potential consent forms against the 53,502 potential class members.” See id. at 465–

66.

Those same types of concerns could well arise here. NeilMed raises the

prospect that it has thousands of such forms, each of which presumably would need

to be “cross-checked” against the list of fax recipients—at least if such forms suffice

to show consent. And such a task becomes even more unwieldy if one takes NeilMed

at its word: that continued searching of its “thousands of return faxes” would yield

“additional tangible evidence of consent with respect to all those doctors, too.”

(Opp’n, Doc. 66, #1552). This is precisely the type of form-by-form inquiry the Sixth

Circuit found to preclude class certification. See Sandusky Wellness, 863 F.3d at

469. Thus, the faxback forms cut at least somewhat against a finding of

predominance here.

Now turn to the declarations. On their own, they likewise cut only marginally

in favor of a finding that individual questions will predominate over common ones.

To be sure, the declarations state that the signatory “specifically requested[] and

gave permission” for NeilMed to send faxes, and hold out the challenged fax as “an

example of the type of facsimile” that was “welcome and requested.” (Consent

Declaration, Jacobson Decl. Ex. D, Doc. 66-5, #1642–43). But the declarations are

not a silver bullet for NeilMed because, beyond stating that the declarant provided

their fax number to NeilMed with the understanding that NeilMed would use it, the

declarations do not specify precisely how and when each declarant consented. The

language of the declarations (which are all identical) could encompass both a doctor

who gave her business card to Dr. Mehta in 2012 and a doctor who swiped her

badge at a NeilMed trade show booth in 2017. For that matter, any or all of the

declarants may have simply provided their fax number using a “fax back” form like

those discussed above, in which case the declarations become somewhat cumulative.

In short, the declarations provide the Court with little guidance either way on

whether the consent issue in this case interferes with a finding of predominance.

In the end, though, NeilMed has provided sufficient evidence for the Court to

conclude that it is at least likely that the consent issue here will be individualized.

As noted, NeilMed offered essentially unrebutted testimony that it grew its list

organically based on individualized interactions with potential clients. As a factual

matter, that creates almost a sort of presumption that the consent issue will be

individualized. Against that backdrop, it would be incumbent upon Dr. Cooper to

show why that is not the case. On that front, she offers nothing. She offers no

evidence, for example, that NeilMed in fact purchased the fax numbers, nor does

she have any meaningful basis to dispute NeilMed’s account that it gathered

numbers at some 571 trade shows, or through other individualized contacts.

Instead, Dr. Cooper seeks to raise doubt by pointing out what the evidence

does not include. For example, she correctly notes that NeilMed identified no

salespeople who allegedly confirmed consent orally, nor does it provide any records

reflecting which doctors swiped their badges at trade shows, or other like evidence.

But the fact that NeilMed might have submitted more or different evidence

does not doom its opposition to certification. And, contrary to Dr. Cooper’s argument

that NeilMed has “no evidence” of permission, (Reply, Doc. 70, #3332), NeilMed has

marshalled at least some evidence that members of the putative class consented in

a variety of ways over several years, including by leaving their contact information

at trade shows, responding to sample offers, and giving their contact information

directly to NeilMed employees. NeilMed’s CEO testified that, although he did not

personally obtain consent from each fax recipient, he has “no doubt” that NeilMed’s

“salespeople over the years … confirmed that [it’s] okay to communicate via fax,

because fax is the main system via which doctors communicate.” (Mehta Dep., Doc.

61-1, #917). This, he says, “has been basically [NeilMed’s] practice for over 20

years.” (Id.). That testimony, by itself, is sufficient to raise at least a likelihood that

a substantial number of individualized inquiries will be necessary. And, absent

competing evidence, that suffices to defeat predominance.

Most of Dr. Cooper’s arguments to the contrary incorrectly focus on whether

NeilMed’s evidence of consent will hold up when measured against substantive

TCPA law. In response to Mehta’s testimony about NeilMed’s “practice” of

confirming that it’s “okay to fax,” for example, Dr. Cooper counters that “a long-

standing practice of communicating with doctors via facsimile hardly amounts to

clear-and-convincing evidence that the doctors have given prior, express permission

to receive [faxed] advertisements.” (Mot., Doc. 59, #507). Dr. Cooper likewise urges

that none of NeilMed’s fax-back forms nor consent declarations constitute prior

express permission for purposes of the TCPA because none of the documents

explicitly mention consenting to receive faxed advertisements. (Reply, Doc. 70,

#3326–27). Thus, Dr. Cooper says, none of the senders could have “underst[ood] that

by providing a fax number, [they were] agreeing to receive faxed advertisements.”

(Id. at #3326 (quoting In re Rules and Regulations Implementing the Telephone

Consumer Protection Act, 68 Fed. Reg. 44144, ¶¶ 135, 136 (July 25, 2003))).

To be sure, a defendant cannot defeat predominance by raising factual issues

having no bearing at all on the salient legal question. See, e.g., Brigadoon Fitness,

29 F.4th at 846–47 (explaining that, if the defendant’s “claim of permission were

based on a legally flawed definition, the company’s argument regarding

predominance would fail”). For example, even a mountain of documentary evidence

proving that every single putative class member unambiguously consented to

receive faxed advertisements could not carry the day for NeilMed if that evidence

showed they did so only after having received the challenged fax. In other words, if

the evidence that the defendant produces to support its claim that consent will

require an individualized determination is legally irrelevant to that issue, that

evidence would do little to interfere with a plaintiff’s showing of predominance.

The evidence NeilMed has submitted, however, is not per se irrelevant.

Indeed, contrary to Dr. Cooper’s argument, NeilMed’s longstanding practice of

communicating with doctors via fax very well might satisfy the definition of prior

express permission as articulated by various courts. See Bais Yaakov of Spring

Valley v. ACT, Inc., 12 F.4th 81, 90 (1st Cir. 2021) (“FCC rules (unchallenged by

either side) provide that in gauging whether express permission was provided, we

consider the understanding of the recipient.” (citing In re Rules & Regulations

Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14,014,

14,129 (2003) (“Express permission to receive a faxed ad requires that the consumer

understand that by providing a fax number, he or she is agreeing to receive faxed

advertisements.”))). To ultimately resolve that question, the Court would require

additional context about the circumstances in which each physician consented. And

there lies the rub—it is this very need for context that creates the predominance

hurdle Dr. Cooper stumbles on here. See id. at 92 (“In short, even if we assume that

these documents are advertisements, [defendant] would not incur liability if in the

context of a particular relationship a request for [defendant’s] publications was

clearly understood as an invitation to fax what was faxed.”); Gorss Motels, Inc. v.

Safemark Sys., LP, 931 F.3d 1094, 1100 (11th Cir. 2019) (“Although express

permission requires a ‘clear[] and unmistakabl[e] communicat[ion],’ it does not

require that a recipient state specifically that his permission includes faxed

advertisements.”); cf. Physicians Healthsource, Inc. v. Cephalon, Inc., 954 F.3d 615,

622 (3d Cir. 2020) (“The District Court was thus correct in finding that … [plaintiff]

provided business cards with its fax number to drug company representatives,

thereby giving express consent, invitation, and permission to receive related

information, and thus in finding that the two faxes were solicited.”); Robert W.

Mauthe, M.D., P.C. v. Millennium Health LLC, No. CV 18-1903, 2020 WL 2793954,

at *7 (E.D. Pa. May 29, 2020) (considering first whether “the plaintiff gave the

defendant express consent to send the fax through ‘voluntary provision’ of the

plaintiff’s fax number” and, if so, whether the challenged fax “relate[d] to the reason

the number was provided”).

More broadly, the Court’s mandate at this juncture is not to prejudge the

success of NeilMed’s defense theories. Instead, “the office of a Rule 23(b)(3)

certification ruling is … to select the ‘metho[d]’ best suited to adjudication of the

controversy ‘fairly and efficiently.’” Amgen, 568 U.S. at 460. Thus, the Court’s duty

is only to determine whether the issue of consent is a common issue susceptible to

generalized proof, or an individualized issue incapable of efficient class-wide

resolution. “[I]t is not the final merits of the permission inquiry that matter for Rule

23(b)(3) purposes; it is the method of determining the answer and not the answer

itself that drives the predominance consideration ….” Brigadoon Fitness, 29 F.4th

at 845; see also Top Flite, 843 F.3d at 1124 (the predominance inquiry requires a

court to assess whether the pertinent legal and factual questions are “subject to

generalized proof, and thus applicable to the class as a whole”). In other words,

“[w]hat matters [at this stage] is the type of evidence that the parties will submit to

prove and disprove the defense.” Brown v. Electrolux Home Prods., Inc., 817 F.3d

1225 (11th Cir. 2016) (emphasis added). As noted above, here the evidence on

consent likely will consist of individualized information about context. That

counsels in favor of finding a lack of predominance.

For similar reasons, Dr. Cooper is incorrect to suggest that a defendant at

this stage must “set[] forth specific evidence showing that a significant percentage

of the putative class consented.” (Reply, Doc. 70, #3337 (quoting Dr. Robert L.

Meinders D.C., Ltd. v. Emery Wilson Corp., No. 14-cv-596, 2016 U.S. Dist. LEXIS

80570, *19–*20 (S.D. Ill. 2016))). Dr. Cooper offers no appellate precedent (nor even

any in-circuit precedent) for this proposition. To the contrary, the Seventh Circuit

(which encompasses the district court on which Dr. Cooper relies) recently rejected

just such a requirement. Brigadoon Fitness, 29 F.4th at 848 (7th Cir. 2022)

(“[Plaintiff’s] reliance on district court cases to establish a rule that defendants

must present evidence of permission given by a ‘significant percentage’ of the

proposed class to defeat class certification reflects an over-reading of those cases.”).

That some, or even most, of NeilMed’s affirmative defenses may ultimately fail does

not make the case any more amenable to the class action treatment; rather, “courts

have acknowledged that the predominance-defeating evidence of consent presented

by the defendant ‘may not all hold up’ when reviewed on the merits.” Licari Fam.

Chiropractic Inc. v. eClinical Works, LLC, No. 8:16-CV-3461-MSS-JSS, 2019 WL

7423551, at *10 (M.D. Fla. Sept. 16, 2019) (citing, among others, Brodsky v.

HumanaDental Ins. Co., 910 F.3d 285, 292 (7th Cir. 2018)).

Thus, NeilMed need not “prove” consent at this preliminary stage (as Dr.

Cooper seems to suggest). It need only offer evidence sufficient to show that it is

likely that the consent issue here will require a substantial number of

individualized determinations. And the Court finds that it has done so by

presenting “sufficient, non-speculative evidence that a bona fide issue of consent

exists.” Sawyer, 2018 WL 2425780, at *9. Thus, Dr. Cooper must, consistent with

her burden under Rule 23, “come up with something (whether argument or

evidence) to persuade th[e] Court that those individualized consent issues would not

drive this litigation.” Id. Dr. Cooper has failed to do so.

In a further effort to sustain her burden under Rule 23, Dr. Cooper argues

that there exists “class-wide evidence that NeilMed did not obtain prior express

invitation or permission from the 54,938 successful recipients of the P3990 Fax.”

(Mot., Doc. 59, #504). To support that argument, Dr. Cooper points to the

depositions of three NeilMed employees: Dr. Mehta, Srikanth Pai, and Jeffrey

Davis. According to Dr. Cooper, certain portions of these employees’ deposition

testimony show that NeilMed “did not attempt to … obtain [] permission” from

recipients of the P3990 Fax before transmitting it. (Id.). For example, Srikanth Pai,

NeilMed’s Director of Marketing, testified that he did not know whether, prior to

the P3990 broadcast, “anyone at NeilMed call[ed] any of the doctors seeking

permission to send” it. (Id. (quoting Pai Dep., Doc. 62-1, #1123)). And Jeffrey Davis,

part of the “graphics team,” testified that he was not “instructed to call [anyone]” to

obtain permission for the fax. (Id. (quoting Davis Dep., Doc. 60-1, #797)).

But Dr. Cooper over-reads these depositions. At best, these excerpts show

that none of the deposed employees themselves reached out to physicians or

physicians’ offices regarding the P3990 Fax. And, apart from failing to establish

that no one else at NeilMed reached out regarding the P3990 Fax specifically, these

excerpts fail to consider that prior express permission, once given, can continue

until revoked. See Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 950

F.3d 959, 966 (7th Cir. 2020) (“Both CE Design and Travel 100 Grp., as well as the

FCC’s regulations, imply that a party may consent on an ongoing basis to faxed

advertisements. Given the impracticality of any other rule, we make our ruling

explicit: Provided a customer gives consent ..., we will presume that the customer

has given permission on an ongoing basis to fax advertisements.”) (citations

omitted). Thus, the sender of a fax need not obtain permission for each fax

individually, and these depositions fail to constitute generalized proof of an absence

of consent.

In sum, the Court concludes based on the record here that individualized

factual determinations about if, when, and how certain putative class members (i.e.,

fax recipients) consented would likely become the “driver” of this litigation. Thus,

Dr. Cooper has failed to establish the predominance of common questions as

Federal Rule of Civil Procedure 23(b)(3) requires.

CONCLUSION

For the foregoing reasons, the Court DENIES Dr. Cooper’s Motion for Class

Certification (Doc. 59).

SO ORDERED. □□ |

DATE DOUGLAS R. COLE \

UNITED STATES DISTRICT JUDGE

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