Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0144p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SANDUSKY WELLNESS CENTER, LLC, an Ohio limited ┐

liability company, individually and as the │

representative of a class of similarly situated persons, │

Plaintiff-Appellant, │

> No. 16-3741

│

v. │

│

│

ASD SPECIALTY HEALTHCARE, INC., D/B/A BESSE │

MEDICAL AMERISOURCEBERGEN SPECIALTY GROUP, │

INC.; JOHN DOES 1–10, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:13-cv-02085—Jack Zouhary, District Judge.

Argued: February 2, 2017

Decided and Filed: July 11, 2017

Before: SUHRHEINRICH, SUTTON, and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Glenn L. Hara, ANDERSON + WANCA, Rolling Meadows, Illinois, for Appellant.

Martin W. Jaszczuk, LOCKE LORD LLP, Chicago, Illinois, for Appellees. ON BRIEF: Glenn

L. Hara, ANDERSON + WANCA, Rolling Meadows, Illinois, Matthew E. Stubbs,

MONTGOMERY RENNIE & JONSON, Cincinnati, Ohio, for Appellant. Martin W. Jaszczuk,

W. Scott Hastings, Keith L. Gibson, LOCKE LORD LLP, Chicago, Illinois, Jennifer J. Dawson,

MARSHALL & MELHORN, LLC, Toledo, Ohio, for Appellees.

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 2

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. In 2010, Defendant ASD Specialty Healthcare, d/b/a/ Besse

Medical AmerisourceBergen Specialty Group (“Besse”), a pharmaceutical distributor, sent a

one-page fax advertising the drug Prolia to 53,502 physicians. Only 40,343, or 75%, of these

faxes were successfully transmitted. Plaintiff Sandusky Wellness Center, a chiropractic clinic

that employed one of these physicians, claims to have received this so-called “junk fax,” and—

three years later—filed a lawsuit against Besse for the annoyance. Sandusky alleged that Besse

violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, by sending an unsolicited fax

advertisement lacking a proper opt-out notice, and it sought to certify a putative class of all

40,343 Prolia fax recipients. The district court denied Sandusky’s motion for class certification,

and because that decision was not an abuse of discretion, we affirm.

I

We first provide a brief overview of the Telephone Consumer Protection Act before

turning to the facts of this case.

A

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA), see Pub. L.

No. 102-243, 105 Stat. 2394, which was later amended by the Junk Fax Prevention Act of 2005,

see Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C. § 227). These legislative efforts

were geared towards curbing the inundation of “junk faxes” that businesses were receiving. H.R.

Rep. 102–317 at 10 (1991). These faxes were seen as problematic because they forced unwitting

recipients to bear the costs of the paper and ink and also monopolized the fax line, preventing

businesses from receiving legitimate messages. Id.

In response, the TCPA generally banned the sending of any “unsolicited advertisement”

via fax. 47 U.S.C. §227(b)(1)(C) (emphasis added). A fax is “unsolicited” if it is sent to persons

who have not given their “prior express invitation or permission” to receive it. Id. § 227(a)(5).

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 3

The statute carves out a narrow exception to this general ban by permitting the sending of

unsolicited faxes if a sender can show three things: (1) the sender and recipient have “an

established business relationship”; (2) the recipient voluntarily made his fax number available

either to the sender directly or via “a directory, advertisement, or site on the Internet”; and (3) the

fax contained an opt-out notice meeting detailed statutory requirements. Id. § 227(b)(1)(C)(i)-

(iii). The upshot of this exception is that if an unsolicited fax does not contain a properly worded

opt-out notice, the sender will be liable under the statute, regardless of whether the other two

criteria are met.

Congress also authorized the Federal Communications Commission (FCC) to “prescribe

regulations to implement the requirements of [the TCPA].” Id. § 227(b)(2). In 2006, the FCC

promulgated a rule requiring opt-out notices on solicited faxes, i.e., those faxes sent to recipients

who had given their “prior express invitation or permission” to receive it. See Rules and

Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax

Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,971–72 (May 3, 2006) (now codified at 47

C.F.R. § 64.1200(a)(4)(iv)) (the “Solicited Fax Rule”). After the passage of the Solicited Fax

Rule, both unsolicited and solicited faxes were required to include opt-out notices that, among

other things, were “clear and conspicuous,” informed recipients that a sender was required to

comply with an opt-out request “within the shortest reasonable time,” and included a telephone

number recipients could call to exercise their opt-out rights. See 47 U.S.C. § 227(b)(2)(D)(i)-

(vi).

To ensure fax senders complied with the TCPA, Congress provided for a private right of

action that allowed individuals and entities to sue for injunctive and monetary relief based on any

violation “of [the statute] or the regulations prescribed [there]under.” Id. § 227(b)(3).

Specifically, fax senders faced a $500 fine for each fax sent that violated the TCPA or any FCC

rule—a fine that could be increased to $1,500 per fax for willful violations. Id.

The import of the TCPA’s damage scheme combined with the FCC’s Solicited Fax Rule

meant vast exposure to liability for businesses that used fax machines to advertise. For example,

even individuals who agreed to receive faxes could nevertheless turn around and sue senders for

$500 per fax if, in their view, an opt-out notice was not sufficiently “clear and conspicuous.”

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 4

For businesses that sent faxes on a mass scale, this liability quickly added up. See, e.g., Nack v.

Walburg, 715 F.3d 680, 682 (8th Cir. 2013) (recognizing that the Solicited Fax Rule’s opt-out

notice requirement subjected Walburg to “a class-action complaint seeking millions of dollars

even though there is no allegation that he sent a fax to any recipient without the recipient’s prior

express consent”). Here, for example, Sandusky proposed a class size of 40,343 individuals and

entities. With a minimum of $500 potentially owed to each class member, Besse could be on the

hook for over $20 million.

Concerned by this specter of crushing liability, businesses (and courts) began to question

whether the FCC possessed the authority to promulgate the Solicited Fax Rule given that the text

of the TCPA appeared to reach only unsolicited faxes. See, e.g., id. (finding it “questionable

whether the regulation at issue . . . properly could have been promulgated under the statutory

section that authorized a private cause of action”). Many fax senders petitioned the FCC for a

declaratory ruling asking the agency to acknowledge its lack of statutory authority, see Anda

Petition for Declaratory Ruling, CG Docket No. 05-338 (Nov. 30, 2010).

But in 2014, the FCC issued an order denying the petitioners’ request, standing by the

Solicited Fax Rule. See Order, Petitions for Declaratory Ruling, Waiver, and/or Rulemaking

Regarding the Commission’s Opt-Out Requirements for Faxes Sent with the Recipient’s Prior

Express Permission, 29 F.C.C.R. 13,998, 13,998, 14,005 (2014) (“2014 Order”). In the same

order, the FCC granted retroactive waivers of liability to the petitioners, exempting them from

compliance with the Rule during a certain timeframe due to confusion over its applicability. Id.

at 13,998. Furthermore, the FCC encouraged other fax senders to “seek waivers such as those

granted in this [2014] Order.” Id. Besse heeded this advice, and in August 2015, the FCC

granted it, along with 100 others, a similar liability waiver. Order, Petitions for Declaratory

Ruling and Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv) Regarding the Commission’s

Opt-Out Requirements for Faxes Sent with the Recipient’s Prior Express Permission,

30 F.C.C.R. 8598 (2015) (“2015 Order”).

After the 2014 Order was issued, several fax senders filed petitions for review of the

agency’s decision in multiple circuit courts. Bais Yaakov Docket, Notice of Multi-Circuit

Petitions for Review filed on 11/13/14; Attachment A. The United States Judicial Panel on

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 5

Multidistrict Litigation consolidated the petitions in the District of Columbia Circuit. Bais

Yaakov Docket, Consolidation Order filed on 11/14/14. In March 2017, a split panel of the D.C.

Circuit struck down the Solicited Fax Rule, holding it “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). Applying the Chevron framework, the majority found that the clear text of the TCPA

reached only unsolicited fax advertisements and that the FCC was thus without the authority to

promulgate a rule governing solicited faxes. See id. at 1082 (citing Chevron USA Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 842–43 & n.9 (1984)) (“Congress drew a line in the text of

the statute between unsolicited fax advertisements and solicited fax advertisements.”). Because

the majority struck down the Solicited Fax Rule, the question of the FCC’s authority to issue

retroactive waivers—which was also challenged—became moot. Id. at 1083 n.2. The D.C.

Circuit’s invalidation of the Solicited Fax Rule occurred after the district court denied

Sandusky’s motion for class certification in this case.

B

Besse is a distributor of pharmaceuticals and medical products. In 2007, it purchased a

list of physician contact information from InfoUSA, a third-party data provider. Some of the

physicians on that list, Besse later learned, happened to be current or former customers. Besse

condensed the InfoUSA List down to 53,502 names, creating the Prolia List, which it planned to

use to send a fax advertising the drug. On June 16, 2010, WestFax, a fax broadcaster,

transmitted the Prolia fax on Besse’s behalf. The one-page fax stated that “Besse Medical is

proud to offer Prolia” and touted “FREE Overnight Shipping on all PROLIA orders!” See R. 1-

1, Prolia Fax at 1, PID 15. The ad also contained a blank order form, a fax number where

completed orders could be sent, and a fine-print opt-out notice. Id.

Although the fax was supposed to reach all 53,502 numbers on the Prolia List, WestFax’s

invoice records confirm that only 40,343, or 75% of the faxes, were transmitted successfully.

While this total number of actual Prolia fax recipients is known, the identity of each is not.

Typically after a fax blast, a fax broadcaster will retain fax logs, listing by fax number each

intended recipient and whether that recipient received a successful transmission of the fax. See

Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684–85 (7th Cir. 2013). Here, however, the fax

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 6

logs no longer exist. Sandusky did not sue Besse until three years after receiving the Prolia fax

and by that time, neither Westfax nor Besse—who has an 18-month document retention policy—

possessed a copy of the logs by which recipients could be identified.

Notwithstanding this roadblock, Sandusky Wellness Center claims it received the Prolia

fax. In 2013, it filed suit against Besse, claiming Besse violated the TCPA by sending an

unsolicited fax with a non-compliant opt-out notice. Following discovery, Sandusky sought

certification of a putative class comprising all 40,343 persons who also allegedly received the

fax. In Sandusky’s view, Besse was liable to this whole lot, with no need to distinguish between

which faxes were unsolicited and which were solicited: the statute itself provided redress for the

former, and the Solicited Fax Rule covered the latter.

The district court, however, denied Sandusky’s motion for class certification. See

generally R. 108, Memorandum Op. at 1–9, PID 24703–11. It held that Sandusky’s proposed

class failed to satisfy Rule 23(b)(3) because two individualized issues—class member identity

and consent—were central to the lawsuit and thus prevented “questions of law or fact common to

class members [from] predominat[ing].” Fed. R. Civ. P. 23(b)(3); R. 108, Memorandum Op. at

3–4, PID 24705–06. As to class member identity, the district court concluded that, in the

absence of fax logs, no classwide means existed by which to identify the 75% of individuals who

received the Prolia fax, and thus were proper TCPA claimants, from the other 25%, who lacked

standing to sue. R. 108, Memorandum Op. at 4, PID 24706. Without fax logs, the district court

determined that “each potential class member would have to submit an affidavit certifying

receipt of the Prolia fax.” Id. at 6, PID 24708. Since the district court foresaw this becoming a

highly individualized process, this counseled against class certification.

As to consent, the district court concluded that those fax recipients who had solicited the

Prolia fax—i.e., consented to receiving it—did not have a valid claim against Besse since the

FCC had granted Besse a retroactive waiver from complying with the Solicited Fax Rule. Id. at

7–8. The district court noted that Besse had produced considerable evidence indicating that at

least some intended Prolia fax recipients had indeed solicited the fax. Thus, weeding out the

solicited from the unsolicited fax recipients to discern proper class membership “would require

manually cross-checking 450,000 potential consent forms [that established a fax was solicited]

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 7

against the 53,502 potential class members,” another individualized inquiry that made class

certification improper. See id. at 6–8, PID 24708–10.

As an alternative to denying Sandusky’s motion on Rule 23(b)(3) predominance grounds,

the district court also found that Sandusky’s proposed class definition did not meet the implicit

ascertainability requirement since identifying class members in the absence of fax logs was not

“administratively feasible.” Id. at 4–6, PID 24706–08. This appeal followed.

II

As explained more fully below, we find no abuse of discretion in the district court’s

denial of class certification. First, the district court was correct to conclude that individualized

questions of consent prevent common questions from predominating under Rule 23(b)(3).

Although the district court credited the FCC’s retroactive waiver for the need to distinguish

between solicited and unsolicited Prolia faxes, the D.C.’s Circuit’s intervening decision in Bais

Yaakov, which invalidated the Solicited Fax Rule, provides alternative grounds for this

differentiation. Second, the district court’s recognition of the difficulty in identifying class

members without fax logs and with sole reliance on individual affidavits was equally sufficient

to preclude certification, regardless of whether this concern is properly articulated as part of

ascertainability, Rule 23(b)(3) predominance, or Rule 23(b)(3) superiority.

A

We review the district court’s denial of class certification for an abuse of discretion.

Rikos v. Procter & Gamble Co., 799 F.3d 497, 504 (6th Cir. 2015). “An abuse of discretion

occurs if the district court relies on clearly erroneous findings of fact, applies the wrong legal

standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear

error of judgment.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 536 (6th Cir. 2012).

In the class action context, a district court is given “substantial discretion in determining whether

to certify a class, as it possesses the inherent power to manage and control its own pending

litigation.” Rikos, 799 F.3d at 504 (quoting Beattie v. CenturyTel, Inc., 511 F.3d 554, 559 (6th

Cir. 2007)). Therefore, our review is “very limited,” and we will reverse “only if a strong

showing is made that the district court clearly abused its discretion.” Young, 693 F.3d at 536.

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 8

“The class action is ‘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 merit certification,

a putative class must satisfy the four requirements of Rule 23(a)—numerosity, commonality,

typicality, and adequate representation—plus fit within one of the three types of classes listed in

Rule 23(b). Young, 693 F.3d at 537. Rule 23(b)(3) classes—the kind at issue here—must meet

predominance and superiority requirements, that is, “questions of law or fact common to class

members [must] predominate over any questions affecting only individual members” and class

treatment must be “superior to other available methods.” Fed. R. Civ. P. 23(b)(3). In addition,

Rule 23(b)(3) classes must also meet an implied ascertainability requirement. Cole v. City of

Memphis, 839 F.3d 530, 541 (6th Cir. 2016). It is the party seeking class certification—here,

Sandusky—that bears the burden of “affirmatively demonstrat[ing]” compliance with Rule 23.

Wal-Mart, 564 U.S. at 350.

B

The district court determined that questions of consent presented an individualized issue.

See R. 108, Memorandum Op. at 6–9, PID 24708–11. Acknowledging that the FCC had

retroactively waived Besse’s liability for failure to comply with the Solicited Fax Rule, it

concluded that Besse had a valid defense as to the solicited Prolia fax recipients—they were not

proper class claimants. See id. at 7, PID 24709. Identifying these individuals, however, entailed

combing through hundreds of thousands of customer forms that Besse had produced as evidence

of consent, a recipient-by-recipient inquiry that was prohibitive of class certification. Id. at 8,

PID 24710.

1

While the district court assumed the FCC’s retroactive waiver exempted Besse from

liability for sending solicited Prolia faxes, the intervening D.C. Circuit decision striking down

the Solicited Fax Rule means reliance on this waiver is no longer necessary. Instead, the

invalidation of the Rule altogether confirms the district court’s conclusion that Besse cannot be

liable to any individuals who solicited the Prolia fax. See Bais Yaakov, 852 F.3d at 1083

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 9

(holding the Solicited Fax Rule “unlawful to the extent that it requires opt-out notices on

solicited faxes”).

Once the Multidistrict Litigation Panel 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[].” Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir. 2008) (quoting

MCI Telecomms. Corp. v. U.S. West Comms., 204 F.3d 1262, 1267 (9th Cir. 2000)). And

consequently, its decision striking down the Solicited Fax Rule became “binding outside of the

[D.C. Circuit].” Id. This 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. See CE Design, Ltd. v. Prism

Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir. 2010). Thus, since the Solicited Fax Rule is no

longer valid, the district court would reach the same conclusion as it did initially: that questions

of consent present individualized issues counseling against class certification.

Sandusky contends that the district court is not bound by Bais Yaakov. Its argument is as

follows: The D.C. Circuit struck down only the FCC’s 2014 Order validating the Solicited Fax

Rule. That order applied only to specific petitioners. Besse did not petition the FCC for relief

from the Rule until later, and its denial came in the 2015 Order. Thus, according to Sandusky,

this court must assume the Solicited Fax Rule’s validity until the 2015 Order is separately (and

successfully) challenged in a circuit court. See App. R. 34, Sandusky Rule 28(j) Letter at 1–2.

Sandusky misreads the breadth of the D.C. Circuit decision. That court was clear that the

“Solicited Fax Rule is unlawful” and vacated the 2014 Order because it “interpreted and applied

[that Rule].” Bais Yaakov, 852 F.3d at 1083. Thus, it was the Solicited Fax Rule itself that was

struck down, which is itself an “order.” See Leyse v. Clear Channel Braod., Inc., 545 F. App’x

444, 455 (6th Cir. 2013) (citing Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407

(1942)). Since the 2015 Order likewise “interpreted and applied [the Solicited Fax Rule],” that

order is also no longer good law post-Bais Yaakov. Moreover, the 2015 Order purported to

“follow[] the Commission’s 2014 fax opt-out notice order.” 2015 Order, 30 F.C.C.R. at 8598.

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 10

Thus, Sandusky’s argument that the district court would be required to turn a blind eye to the

D.C. Circuit decision invalidating the Solicited Fax Rule, and instead follow the 2015 Order that

relies on an abrogated rule, is without merit.

2

Not only was the district court correct to identify consent as presenting individualized

questions, such questions were sufficient to keep common questions from predominating and

preclude certification under Rule 23(b)(3). This rule provides that “questions of law or fact

common to class members must predominate over any questions affecting only individual

members.” In discerning whether a putative class meets the predominance inquiry, courts are to

assess “the legal or factual questions that qualify each class member’s case as a genuine

controversy,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997), and assess whether

those questions are “subject to generalized proof, and thus applicable to the class as a whole,”

Bridging Cmtys., Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016) (internal

citation omitted). “If the same evidence will suffice for each member to make a prima facie

showing, then it becomes a common question.” Sandusky Wellness Ctr., LLC v. Medtox

Scientific, Inc., 821 F.3d 992, 998 (8th Cir. 2016). Plaintiffs need not prove that every element

can be established by classwide proof. Bridging Cmtys., 843 F.3d at 1124. But the 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.” Gene & Gene,

LLC v. BioPay, LLC, 541 F.3d 318, 326 (5th Cir. 2008) (quotation marks omitted).

Here, if Sandusky’s 40,343-member class were certified, the district court would be

tasked with filtering out those members to whom Besse was not liable—those individuals who

solicited the Prolia fax. Regardless of other questions that may be common to the class,

identifying which individuals consented would undoubtedly be the driver of the litigation. See

id. In other words, “one substantive issue undoubtedly will determine how a trial on the merits

will be conducted if the proposed class is certified.” Id. at 327. “This issue . . . is whether

[Besse’s] fax advertisements were transmitted without the prior express invitation or permission

of each recipient. Thus, the predominant issue of fact is undoubtedly one of individual consent.”

Id.

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 11

The undertaking is individualized because Besse produced evidence that “several

thousand” individuals on the Prolia List of intended fax recipients are “current or former Besse

customers.” See App. R. 18, Decl. of Eric Besse ¶¶ 5, 9, APX 0002–03. This evidence consisted

of over 450,000 pages of various forms where customers had provided Besse with their fax

numbers. See, e.g., id. ¶ 9, Exhs. 1, 7, and 13, APX 0003, 0022, 0034, and 0047. Upon review

of a sample of these documents, the district court concluded that many forms would demonstrate

that these customers—if their names also appeared on the Prolia List—had given the requisite

consent, or “prior express invitation or permission,” to receive the fax, and thus would not have

valid claims against Besse. R. 108, Memorandum Op. at 8, PID 24710. But identifying these

individuals “would require manually cross-checking 450,000 potential consent forms against the

53,502 potential class members.” Id. Identifying solicited fax recipients through a form-by-form

inquiry is sufficiently individualized to preclude class certification.

This court’s decision in Bridging Communities, Inc. v. Top Flite Financial, Inc. does not

require otherwise. In that junk fax case, we held that “the mere mention of a defense is not

enough to defeat the predominance requirement of Rule 23(b)(3).” Bridging Cmtys., 843 F.3d at

1126. But there, the defendant had simply “raised the possibility” that “individual class

members might have solicited or consented to receiving the challenged faxes.” Id. at 1123, 1125

(emphasis added). And, we were “unwilling to allow such speculation and surmise to tip the

decisional scales in a class certification ruling.” Id. at 1125 (internal quotation marks omitted).

Here, by contrast, Besse has produced concrete evidence of consent, evinced by hundreds of

thousands of customer documents, some of which we know for certain match the names of

individuals on the Prolia List. Reviewing these documents, discerning which provide the

requisite consent, and then manually cross-checking each individual customer name against the

Prolia List—with a match indicating Besse has a valid defense as to that individual—is no

hypothetical scenario. Were the class certified, this undertaking would be a tangible reality for

the district court, sufficiently distinguishing the facts of this case from the mere “speculation and

surmise” that existed in Bridging Communities.

Sandusky makes two additional arguments as to why consent evidence should not prevent

certification. First, Sandusky argues that there is actually a class-wide absence of consent since

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 12

Besse compiled its Prolia List using fax numbers obtained from third-party data provider,

InfoUSA. It would have us hold that “if a fax sender is buying a list of fax numbers from a third

party, then it cannot have prior express permission as a matter of law.” See Appellant Br. at 30;

see also Bridging Cmtys., 843 F.3d at 1126 (recognizing the possibility that in cases “where . . . a

sender ‘obtained all of the fax recipients’ fax numbers from a single purveyor of such

information’ there exists a ‘class-wide means of establishing the lack of consent based on

arguably applicable federal regulations’”) (quoting Gene & Gene LLC, 541 F.3d at 327–28).

This argument is unavailing. Besse’s enlistment of a third party to send the Prolia fax on

its behalf does not somehow negate previous consent. Perhaps Besse risked a lack of consent by

relying on this data collector initially, but its ability to produce later consent evidence saves

Besse from this downfall. The case Sandusky cites in support—a district court case—is

inapposite. See Siding & Insulation Co. v. Combined Ins. Grp. Ltd., Inc., No, 1:11 CV 1062,

2012 WL 1425093 (N.D. Ohio 2012). Unlike the voluminous consent evidence in the record

before us, in Siding & Insulation there was “nothing in the record to support the claim that any of

the recipients consented to receiving the fax.” Id. at *3. Therefore, in that case it may very well

have been reasonable for the court to assume a universal lack of consent.

Additionally, no “arguably applicable federal regulation[s]” compel a different

conclusion. One regulation that Sandusky cites, 47 C.F.R. § 64.1200(a)(4)(ii)(B), states that if a

“sender obtains the facsimile number from [a commercial database], the sender must take

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

distribution.” Presumably Sandusky’s argument is that Besse did not verify consent before

sending the Prolia fax, so it was in violation of this regulation. However, this regulation applies

only to the senders of unsolicited faxes. 47 C.F.R. § 64.1200(a)(4) (prohibiting “[u]se of a

telephone facsimile machine, computer, or other device to send an unsolicited advertisement”)

(emphasis added). Since there is evidence that Besse had already obtained consent from certain

individuals on the Prolia List, the faxes sent to those individuals by definition could not have

been unsolicited. Besse did not simply cull fax numbers from one purchased database.

Although it utilized the InfoUSA list in compiling its list of recipients, many of those recipients

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 13

had in fact already provided their fax numbers to Besse and consented to receive advertisements.

Cf. Gene & Gene LLC, 541 F.3d at 329.

Sandusky’s second contention, as stated by counsel at oral argument, is that the district

court should have certified the class and then created subclasses based on the different types of

consent forms produced. According to counsel, he would then proceed subclass-by-subclass and

prove that none of the evidence Besse produced actually amounted to consent under the Act.

However, it was not an abuse of discretion for the district court to deny counsel this opportunity.

See Fed. R. Civ. P. 23(c)(5) (stating that only “[w]hen appropriate, a class may be divided into

subclasses”). To even create subclasses would have required the district court to analyze each

individual form, and further assumes that the forms could be easily categorized. And after this

painstaking sorting process, allowing Sandusky to then litigate the validity of consent as to each

subclass would result in the exact “myriad mini-trials” that Rule 23(b)(3) seeks to prevent. See

Gene & Gene, LLC, 541 F.3d at 329.

Because Besse presented actual evidence of consent to the district court, which required

the need for individualized inquiries in order to distinguish between solicited and unsolicited

Prolia faxes, the district court did not abuse its discretion in denying class certification on these

grounds.

C

In addition to issues surrounding consent, the district court premised its denial of

certification on the inability to identify class members. In its view, this difficulty was a problem

for Sandusky under both Rule 23(b)(3) predominance and ascertainability. Sandusky’s proposed

class consisted of “[a]ll persons who were successfully sent [the Prolia fax].” R. 91 at 12; R.

107. But while Besse intended the fax to be sent to all 53,502 individuals and entities on the

Prolia List, only 40,343 actually received it. Both parties agreed that the 25% who did not

receive the Prolia fax are not valid class members. In the absence of fax logs listing the status of

each attempted transmission, the district court resolved that “each potential class member would

have to submit an affidavit certifying receipt of the Prolia fax. Given that the fax was sent in

2010, the recollection of a putative class member that he, she, or it had received a particular

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 14

unsolicited fax would be somewhat suspect.” R. 108, Memorandum Op. at 6, PID 24708. Thus,

it concluded that using affidavits to identify class members was yet a second individual issue that

prevented common questions from predominating, and reliance on these 7-year-old, self-serving

statements was not an “administratively feasible” way to ascertain class membership.1 Id. at 4–

5, PID 24706–07.

On appeal, Sandusky argues that difficulties in identifying class members are not relevant

to either ascertainability or Rule 23(b)(3) predominance; in its view, this concern should be

accounted for under Rule 23(b)(3)’s superiority prong, which requires courts to determine

whether “a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Analyzing superiority entails balancing

the “the desirability” of class treatment with “the likely difficulties in managing a class action,”

among other things. Id. So although scrutinizing individual affidavits may be burdensome,

Sandusky argues that these burdens are outweighed by the benefits of affording its TCPA claim

class action treatment, which include furthering the deterrent purposes of the TCPA and ensuring

that Besse does not walk away from its alleged wrongdoings scot-free. According to Sandusky,

if the district court had conducted this balancing inquiry, rather than relying on predominance or

ascertainability, it would have certified Sandusky’s proposed class.

We disagree. Even if Sandusky is correct that class member identity is properly analyzed

under Rule 23(b)(3) superiority—something we do not decide—it would not have been an abuse

of discretion for the district court to conclude that class action treatment was not the superior

method for resolving Sandusky’s claim. To be sure, courts have been inconsistent in how they

have accounted for difficulties in identifying class members, especially within the context of the

TCPA. Some consider it when deciding whether common questions of law or fact predominate.

See, e.g., Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685 (7th Cir. 2013) (concluding that fax

logs listing the fax numbers of each individual who received the fax obviated the “need for

recipient-by-recipient adjudication,” and consequently, “the district court did not err in

1

On appeal, Sandusky argues that class members could submit copies of the fax as proof of receipt, as

Sandusky has done. However, even after discovery Sandusky produced no evidence that other fax recipients still

possessed copies of the Prolia fax. And more importantly, Sandusky did not argue this point below, so we deem it

forfeited. See Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 15

concluding that the questions of law or fact common to class members predominate over any

questions affecting only individual members”) (internal quotation marks omitted).

Other courts frame it as a question of ascertainability. In order to meet Rule 23(b)(3)’s

implied ascertainability requirement, 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.” Young, 693 F.3d at 537–38 (citing 5 James W. Moore et al., Moore’s

Federal Practice § 23.21[1] (Matthew Bender 3d ed. 1997)). In the context of the TCPA, where

fax logs have existed listing each successful recipient by fax number, our circuit has concluded

that such a “record in fact demonstrates that the fax numbers are objective data satisfying the

ascertainability requirement.” See Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc.,

757 F.3d 540, 545 (6th Cir. 2014).

Recently, the Second Circuit affirmed a district court’s denial of class certification on

ascertainablity grounds under similar circumstances as present here. See Leyse v. Lifetime

Entm’t Servs., Inc., No. 16-1133-cv, 2017 WL 659894 (2d Cir. Feb. 15, 2017). In Leyse, the

plaintiffs brought a putative class action against Lifetime for violating the TCPA by making a

series of unlawful, prerecorded telephone calls. Id. at *2. They proposed identifying class

members through soliciting affidavits from individuals who would testify to receipt of the calls.

Id. The district court concluded—and the Second Circuit affirmed—that this was not an

ascertainable way to identify class members given “(1) no list of the called numbers existed;

(2) no such list was likely to emerge; and (3) [] proposed class members could not realistically be

expected to recall a brief phone call received six years ago or . . . to retain any concrete

documentation of such receipt.” Id. (internal citations and quotation marks omitted). These

ascertainability concerns mirror the ones present here where (1) fax logs no longer exist; (2) they

are not likely to emerge; and (3) Prolia fax recipients are not realistically expected to remember

receiving a one-page fax sent seven years ago.

And still other courts take a dual-approach, considering both predominance and

ascertainability in tandem, much like the district court did here. See Medtox, 821 F.3d at 997–98

(finding that “whether a class member received the unsolicited fax” was a common question of

fact that predominated when fax logs existed to identify recipients and that “fax logs showing the

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 16

numbers that received each fax are objective criteria that make the recipient [class member]

clearly ascertainable”).

Outside the context of the TCPA, two sister circuits have cautioned against an aggressive

take on ascertainability, and have instead concluded, as Sandusky advocates, that class member

identity concerns should be taken into account under Rule 23(b)(3) superiority. See Mullins v.

Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015) (declining to reverse district court

decision finding that a putative class of all purchasers of Instaflex within the relevant time period

was clearly ascertainable despite the fact that affidavits alone might be the only means of

identifying class members); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 (9th Cir.

2017) (rejecting ConAgra’s argument that there was no administratively feasible way of

identifying putative class of Wesson Oil purchasers who were unlikely to have proof of

purchase, and affirming certification of class because it was defined by objective criteria).

Moreover, Mullins and Briseno suggest that utilizing affidavits alone as a mechanism to identify

class members need not be a barrier to class certification under Rule 23’s implied ascertainability

requirement. Mullins, 795 F.3d at 658, 672; Briseno, 844 F.3d at 1132; cf. Carrera v. Bayer

Corp., 727 F.3d 300, 309–12 (3d Cir. 2013) (suggesting that use of affidavits is insufficient to

satisfy the ascertainability requirement).

As this synopsis indicates, courts have categorized class member identity concerns

differently within Rule 23’s framework. And the district court’s decision to account for it under

ascertainability and predominance does find some support in the case law. However, we see no

need to add our own opinion to this debate. For even assuming Sandusky is correct that

difficulties in identifying class members should be considered as part of Rule 23(b)(3)

superiority, the facts of this case present a situation where the class device is not “superior to

other available methods” due to “the likely difficulties in managing a class action.” Fed. R. Civ.

P. 23(b)(3). Thus, we may affirm the district court on this alternative ground. Stein v. Regions

Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 786 (6th Cir. 2016).

As a general matter, the district court does not know who received the Prolia fax. The

fax logs no longer exist. Yet we know that 13,159 individuals on the Prolia List do not have

valid claims against Besse. Sandusky has proposed no method for weeding out these individuals,

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 17

who comprise approximately 25% of all intended recipients. The district court recognized that

its own proffered solution—having class members submit individual affidavits testifying to

receipt of the Prolia fax—was not feasible, concluding that the reliability of an individual’s

recollection of having received a seven-year-old, single-page fax would be dubious at best.

Furthermore, it is possible that all 53,502 intended recipients might submit affidavits claiming

receipt of the Prolia fax and their entitlement to $500 in damages. Finding out which quarter of

these individuals were being untruthful would require scrutinizing each affidavit and would

undoubtedly be a difficult undertaking. In fact, it may not even be possible, in which case the

district court would be tasked with fashioning some type of reduced equitable relief for all

recipients. Practical concerns such as these highlight the difficulties the district court would

have in managing Sandusky’s proposed class and further underscore the inappropriateness of

class certification.

To our knowledge, no circuit court has ever mandated certification of a TCPA class

where fax logs did not exist, and we decline to be the first. Sandusky cites exclusively out-of-

circuit district court cases as examples of when TCPA classes have been certified despite missing

fax logs. See Appellant Br. at 13–14. But while the district courts in those cases may have

determined, given the specific facts presented, that classwide treatment was manageable, the

district court’s opposite conclusion in this case was not an abuse of discretion.

The two non-TCPA circuit court cases relied on by Sandusky—Mullins and Briseno—

suggest that a district court may rely on affidavits to identify class members, but they do not

mandate that it must do so. Notably, both of those cases affirmed lower court decisions

certifying a class, where the district court had concluded that it was manageable to rely on

affidavits to identify class members. Here, in contrast, the district court came to the opposite

conclusion. We think this difference in procedural posture is important given the “substantial

discretion” we afford district courts in choosing whether to certify a class and our subsequent

“very limited” review of that decision. Rikos, 799 F.3d at 504; Young, 693 F.3d at 536. Finally,

even Mullins contemplates that “[a] plaintiff’s failure to address the district court’s concerns

adequately [with regards to difficult manageability problems] may well cause the plaintiff to

No. 16-3741 Sandusky Wellness Center v. ASD Specialty Healthcare, et al. Page 18

flunk the superiority requirement of Rule 23(b)(3).” See Mullins, 795 F.3d at 672. That is

exactly the scenario we have here.

While class certification may be “normal” under the TCPA, see Appellant Br. at 8

(quoting Turza, 728 F.3d at 683), that does not mean it is automatic. While there may be several

benefits to affording TCPA cases class treatment—for example, as a way to hold businesses

accountable when smaller recovery values provide fewer incentives for solo claims—those

benefits do not always outweigh the difficulties of managing a proposed class. Sandusky waited

three years after receipt of the one-page Prolia fax to sue Besse for failing to include a properly

worded opt-out notice. It did so when fax logs no longer existed to identify each recipient and

without a proposed alternative for identifying class members. Perhaps if Sandusky had brought

suit earlier, fax logs would have existed, and their absence would not pose an independent barrier

to class certification. Or, Sandusky could have filed an individual claim against Besse and

presented a copy of the Prolia fax as evidence of receipt. Instead, Sandusky did neither of these

things. By choosing to file a class action when it did, Sandusky shouldered the burden of

proving that its proposed class satisfied Rule 23. It simply did not meet that burden here. In

sum, we conclude that the difficulty of identifying class members in the absence of fax logs was

a separate and valid concern recognized by the district court that precluded class certification.

III

For the foregoing reasons, we AFFIRM the district court’s denial of class certification.