Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

True Health Chiropractic, Inc. v. McKesson Corp.

United States Court of Appeals, Ninth Circuit

July 17, 2018

True Health Chiropractic, Inc.; McLaughlin Chiropractic Associates, Inc., individually and as representatives of a class of similarly situated persons, Plaintiffs-Appellants,
v.
McKesson Corporation; McKesson Technologies, Inc., Defendants-Appellees.

          Argued and Submitted October 17, 2017 San Francisco, California

          Appeal from the United States District Court for the Northern District of California D.C. No. 4:13-cv-02219-HSG Haywood S. Gilliam, Jr., District Judge, Presiding

          Glenn L. Hara (argued), Anderson and Wanca, Rolling Meadows, Illinois; Willem F. Jonckheer, Schubert Jonckheer & Kolbe LLP, San Francisco, California; for Plaintiffs-Appellants.

          Joseph R. Palmore (argued) and Seth W. Lloyd, Morrison & Foerster LLP, Washington, D.C.; Ben Patterson and Tiffany Cheung, Morrison & Foerster LLP, San Francisco, California; for Defendants-Appellees.

          Before: Michael Daly Hawkins, William A. Fletcher, and Richard C. Tallman, Circuit Judges.

         SUMMARY[*]

         Telephone Consumer Protection Act / Class Certification

         The panel affirmed in part and reversed in part the district court's denial of class certification in an action under the Telephone Consumer Protection Act.

         Appellants sought to represent a class of plaintiffs who allegedly received unsolicited faxed advertisements from defendants in violation of the TCPA. The district court denied class certification on the ground that under Fed.R.Civ.P. 23(b)(3), individual issues related to affirmative defenses would predominate over issues common to the class. These "consent defenses" alleged that putative class members in various ways gave defendants "prior express invitation or permission" to send the faxes.

         The panel concluded that the district court did not impose an "ascertainability" or administrative feasibility requirement for class certification. Agreeing with the Sixth Circuit, the panel held that there is no requirement that all faxes, whether consented or not, must contain an "opt-out" notice because the FCC's Solicited Fax Rule has been held invalid by the D.C. Circuit.

         The panel nonetheless concluded that the district court erred in part in holding that appellants' proposed class or subclasses failed to satisfy the predominance requirement of Rule 23(b)(3). The panel held that in light of Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (holding that "express consent" is an affirmative defense to a claim brought under 47 U.S.C. § 227(b)(1)(A), a provision of the TCPA dealing with unsolicited telephone calls), "prior express invitation or permission" under § 227(b)(1)(C) is an affirmative defense on which the defendant bears the burden of proof. The panel affirmed the district court's denial of class certification with respect to one possible subclass and reversed the district court's holding that other possible subclasses could not satisfy the predominance requirement. The panel held that one subclass would satisfy predominance, and it remanded for a determination whether another subclass would also satisfy the requirement. The panel also remanded to allow the district court to address the requirements of Rule 23(a).

          OPINION

          W. FLETCHER, CIRCUIT JUDGE

         Appellants True Health Chiropractic and McLaughlin Chiropractic ("True Health") seek to represent a class of plaintiffs who allegedly received unsolicited faxed advertisements from appellees McKesson Corporation and McKesson Technologies, Inc. ("McKesson") between September 2009 and May 2010, in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"). The district court denied class certification on the ground that individual issues related to McKesson's affirmative defenses would predominate over issues common to the class. See Fed. R. Civ. P. 23(b)(3). We granted True Health's request for permission to appeal the order pursuant to Federal Rule of Civil Procedure 23(f). We affirm in part, reverse in part, and remand.

         I. Background

         A. True Health's TCPA Claim

         The TCPA forbids certain unsolicited advertisements sent via phone or facsimile ("fax"). 47 U.S.C. § 227(b)(1). In enacting the TCPA, "Congress intended to remedy a number of problems associated with junk faxes, including the cost of paper and ink, the difficulty of the recipient's telephone line being tied up, and the stress on switchboard systems." Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 633 (6th Cir. 2015). The TCPA makes it unlawful to send "unsolicited advertisement[s]" via fax machine. 47 U.S.C. § 227(b)(1)(C). An advertisement is unsolicited if it includes "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." Id. § 227(a)(5). But unsolicited advertisements may be sent if (1) the sender and recipient have "an established business relationship," (2) the recipient voluntarily provided his or her contact information to the sender either directly or indirectly through "a directory, advertisement, or site on the Internet," and (3) the "unsolicited advertisement contains" an opt-out notice meeting certain statutory requirements. Id. § 227(b)(1)(C)(i)-(iii). In 2006, the Federal Communications Commission ("FCC") promulgated a regulation requiring that companies include opt-out notices in solicited as well as unsolicited advertisements (the "Solicited Fax Rule"). 47 C.F.R. § 64.1200(a)(4)(iv). Eleven years later, the D.C. Circuit held the Solicited Fax Rule invalid. See Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017).

         True Health's Second Amended Complaint ("SAC") alleges that McKesson sent to named plaintiffs and other putative class members unsolicited fax advertisements without their prior express permission or invitation, and without opt-out notices, in violation of 47 U.S.C. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4)(iv). According to the SAC, McKesson sent the faxes at issue after having received a May 9, 2008, citation from the FCC warning it against sending unsolicited advertising by fax. The citation stated, "It has come to our attention that your company . . . apparently sent one or more unsolicited advertisements to telephone facsimile machines in violation of Section 227(b)(1)(C) of the [TCPA]." In its answer to the SAC, McKesson alleged that True Health and other putative class members in various ways gave McKesson "prior express invitation or permission" to send the faxes. 47 U.S.C. § 227(a)(5). For ease of reference, we will refer to this as McKesson's "consent defenses."

         B. Discovery

         During discovery, True Health requested that McKesson produce "[a]ll Documents indicating that any person gave prior express invitation or permission to receive facsimile transmissions of any [McKesson advertisements]." True Health also asked McKesson to identify "each type of act that Defendants believe demonstrates a recipient's express permission to receive faxes" and to list which class members consented in each of the ways identified.

         McKesson responded by listing three groups of consent defenses that it claimed relieved it of TCPA liability. McKesson attached to its response three exhibits, which corresponded to the three groups of asserted consent defenses, listing putative class members who purportedly consented in the specified manners. According to McKesson, each exhibit contains the "name and contact information (where available)" of faxes for each asserted consent defense. The exhibits are not in the record, but McKesson described the consent defenses it asserted against the putative class members in each exhibit.

         Exhibit A lists putative class members that, according to McKesson, (1) provided their fax numbers when registering a product purchased from Physician Practice Solutions ("PPS"), a business unit of McKesson Technologies, and/or (2) entered into software-licensing agreements, called End User License Agreements ("EULAs"). Exhibit A, which contains 11, 979 unique fax ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.