Bais Yaakov of Spring Valley v. ACT, Inc., 12 F.4th 81

Background

ACT sent three one-page faxes to Bais Yaakov in 2012; Bais Yaakov had provided its fax number in 2005 when requesting ACT publications/high‑school code.
Bais Yaakov sued under the TCPA alleging the faxes were unsolicited advertisements and sought class treatment for thousands of similar faxes ACT sent to schools.
The FCC had an Opt-Out Regulation (Solicited Fax Rule) requiring opt‑out notices even on solicited faxes; the district court treated the D.C. Circuit’s invalidation of that rule as binding.
The district court denied class certification because individualized disputes over prior express permission would predominate, and later dismissed Bais Yaakov’s individual claim as moot after ACT tendered the full statutory damages by check and promised not to fax again.
On appeal the First Circuit: (1) agreed the Opt‑Out Regulation was invalid; (2) affirmed denial of class certification for lack of predominance; (3) vacated the judgment as to the individual damage claim (not conclusively moot) but affirmed dismissal of injunctive relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of FCC Opt‑Out Regulation (requiring opt‑out on solicited faxes)	Regulation valid and applies; opt‑out absence makes faxes unlawful	FCC exceeded statutory authority because statute requires opt‑out only for "unsolicited" faxes	Regulation invalid; statute's text limits opt‑out requirement to unsolicited faxes, so FCC overreached
Class certification—predominance (consent/permission defense)	Common questions (whether faxes were advertisements) predominate; typicality satisfied	Individualized inquiries into who gave prior express permission will predominate and defeat Rule 23(b)(3)	Affirmed denial of class certification: ACT produced evidence (declarations) that many schools requested publications and likely consented, creating individual consent issues that predominate
Class definition / fail‑safe concern and proposed narrowing	Classes can be redefined (e.g., solicited vs. unsolicited; faxes identical to the three) to avoid fail‑safe and resolve commonality	Narrowing would not eliminate individualized consent inquiries; fail‑safe class problem remains	Court declined to certify and found proposed narrowing would not cure predominance or the fail‑safe concern
Mootness of individual damage claim and injunctive relief after ACT tender	Tender of full statutory damages by check and promise not to fax moots injury; dismissal proper	Tender not equivalent to judgment; unaccepted offers/checks may not moot claim; injunctive relief still contestable	Judgment vacated as to damages (tender did not necessarily moot claim); dismissal of injunctive relief affirmed because future violations could not reasonably be expected

Key Cases Cited

Bais Yaakov of Spring Valley v. ACT, Inc., 852 F.3d 1078 (D.C. Cir. 2017) (holding FCC Opt‑Out Regulation invalid)
Bais Yaakov of Spring Valley v. ACT, Inc., 798 F.3d 46 (1st Cir. 2015) (prior First Circuit decision addressing Rule 68 pick‑off concerns)
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial review of agency statutory interpretations)
In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018) (predominance analysis; affidavits and defendant's promise to contest individual claims can defeat certification)
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455 (2013) (Rule 23(b)(3) certification must choose best method; class proceedings should not decide merits)
Campbell‑Ewald Co. v. Gomez, 577 U.S. 153 (2016) (unaccepted settlement offers are legal nullities; implications for mootness)
Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (presumption of reliance and its effect on predominance in securities class actions)
In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015) (class ascertainability and discussion of fail‑safe concerns)
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000) (predominance inquiry requires realistic prediction of how individual issues will play out)