Bridging Communities Inc. v. Top Flite Financial Inc.
843 F.3d 1119
| 6th Cir. | 2016Background
- In March 2006 B2B (a fax-broadcasting company) sent a Top Flite mortgage advertisement to a purchased InfoUSA list; plaintiffs Bridging Communities and Gamble received and allege the faxes were unsolicited and lacked an established business relationship.
- Plaintiffs sued Top Flite under the TCPA seeking class certification for recipients of the March 2006 fax blast.
- The district court denied class certification under Rule 23(b)(3), concluding individualized issues (consent/established business relationship) predominated, and later dismissed the complaints as moot after plaintiffs declined Rule 68 offers of individual judgment.
- Plaintiffs appealed both the denial of class certification and the dismissal for lack of subject-matter jurisdiction.
- The Sixth Circuit reviewed the predominance determination for abuse of discretion and reviewed de novo the jurisdictional dismissal; it reversed both the denial of class certification and the dismissal and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 23(b)(3) predominance is satisfied for a class of fax recipients | Common issues predominate because faxes were sent from a purchased database and B2B didn’t verify consent; FCC regulations impose class-wide proof burdens | Individualized inquiries into consent or prior business relationships will predominate and defeat class treatment | Reversed: district court abused discretion; speculation about individualized consent cannot defeat predominance where plaintiffs offered class-wide evidence of absence of consent |
| Whether an unaccepted Rule 68 offer of judgment renders plaintiffs’ claims moot (jurisdiction) | Rejection of Rule 68 offer leaves the lawsuit live; an unaccepted offer is a legal nullity | Offer of judgment shows plaintiffs could obtain the individual relief requested and thus moots the case | Reversed: Supreme Court in Campbell-Ewald controls — unaccepted offers do not moot claims; district court’s dismissal was erroneous |
| Whether defendant’s contention that an independent contractor ordered the faxes defeats predominance | N/A (plaintiffs) — dispute over who qualifies as a TCPA "sender" | Top Flite argued it wasn’t the responsible party because an independent contractor placed the order | Held common: the question of who ordered/sent the faxes is common to the class and cannot defeat predominance |
| Proper response when some defenses may affect subclasses | Plaintiffs: class-wide proof can establish predominance; potentially affected members can be handled by subclasses or exclusions later | Defendant: even possibility of individual defenses justifies denying class certification | Court: Possibility of defenses alone does not defeat predominance; procedural mechanisms (subclasses, exclusions) are available if needed on remand |
Key Cases Cited
- Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184 (2013) (predominance focuses on whether common questions exist, not whether they will be decided for the class on the merits)
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case)
- Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) (standard of review for class certification; defenses affecting class members differently do not automatically defeat predominance)
- Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007) (predominance requires that issues subject to generalized proof predominate over individualized issues)
- In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litig., 722 F.3d 838 (6th Cir. 2013) (discussing abuse-of-discretion standard for class certification)
- O’Brien v. Ed Donnelly Enters., 575 F.3d 567 (6th Cir. 2009) (earlier Sixth Circuit holding that an unaccepted Rule 68 offer could be used to challenge jurisdiction; abrogated by Campbell-Ewald)
- Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32 (1st Cir. 2003) (even if a defense may bar some claims, class treatment can still be appropriate and subclasses/exclusions are available)
- Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (in some TCPA cases individualized consent issues can preclude class certification, but database-purchase cases permit class-wide proof)
- Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000) (courts should not permit mere speculation about defenses to defeat class certification)