Kaye v. Amicus Mediation & Arbitration Group, Inc., 300 F.R.D. 67

Background

Plaintiffs Roger H. Kaye and his professional corporation sued Amicus Mediation & Arbitration Group, Inc. and its founder Hillary Earle under the TCPA and a Connecticut statute, alleging thousands of unsolicited fax advertisements and defective opt‑out notices sent from 2009–2013. Plaintiffs attached sample faxes and identified seven dates on which named plaintiffs received faxes.
Defendants sent the faxes using Rapid Fax (Data on Call). Discovery produced a Directory of recipients and Data on Call logs showing 4,102 faxes from June 1, 2012–March 14, 2013 and an additional 1,475 faxes on six earlier dates. Many faxes were identical one‑ or two‑page batches to multiple recipients.
Plaintiffs sought three classes: (A) recipients of faxes containing an opt‑out notice like the named plaintiffs’ (defective‑notice claim); (B) recipients of unsolicited fax advertisements; and (C) Connecticut recipients sent unsolicited faxes without express permission. Plaintiffs moved for class certification; defendants moved to dismiss after serving a Rule 68 offer of judgment.
Defendants’ Rule 68 Offer proposed judgment to plaintiffs for $16,500 plus costs, fees, and a stipulated injunction. Defendants argued the Offer mooted plaintiffs’ individual claims and required dismissal for lack of Article III jurisdiction.
The court found a live Article III dispute because plaintiffs sought a higher statutory recovery based on their theory that each fax violated multiple TCPA provisions (raising a larger potential statutory award than defendants’ calculation), so the Rule 68 Offer did not plainly satisfy plaintiffs’ individual claims.
The court granted certification for Class A (defective opt‑out notice) and certified narrower CTLA‑based subclasses of Classes B and C (recipients whose fax numbers were obtained from the Connecticut Trial Lawyers Association directory). Lead plaintiffs and class counsel were appointed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants’ Rule 68 offer moots plaintiffs’ individual claims and requires dismissal	Kaye contends the Offer does not fully satisfy his individual claim because plaintiffs seek multiple statutory damages per fax for multiple TCPA violations, yielding a much larger recovery than the Offer	Amicus contends the Offer (monetary judgment, injunction, fees) fully satisfies plaintiffs’ individual claims, so Article III jurisdiction is gone and dismissal is required	Court held a live controversy remains because there is a bona fide dispute over the maximum recoverable statutory damages per fax; Rule 68 Offer did not establish mootness, so motion to dismiss denied
Whether proposed classes meet Rule 23(a) (numerosity, commonality, typicality, adequacy) and ascertainability	Kaye argues putative classes are ascertainable from Data on Call logs and the defendant Directory; common issues (defective notice or lack of consent) permit class treatment; plaintiffs and counsel are adequate	Amicus argues membership and liability require individualized inquiries (was each fax an advertisement; did each recipient consent or have an EBR), so commonality/typicality and ascertainability fail	Court found Class A satisfies Rule 23(a) and is ascertainable; Classes B and C as originally drawn fail on commonality/typicality but the court certified CTLA‑based subclasses where common proof predominates and plaintiffs are typical/adequate
Whether individualized consent defenses defeat predominance under Rule 23(b)(3)	Plaintiffs contend for Class A individualized consent is irrelevant; for B/C they seek subclasses limited to a single source (CTLA) so consent can be addressed classwide	Defendants contend mixed sources for fax numbers make consent an individualized issue, defeating predominance and superiority	Court held predominance and superiority satisfied for Class A and for CTLA subclasses of B and C (consent is class‑resolvable within those CTLA subclasses); original broader B and C uncertified
Whether a class action is a superior, manageable method under Rule 23(b)(3) given statutory damages and policy concerns	Plaintiffs argue many claims are small and aggregation is necessary and efficient; manageability is feasible using logs and directories	Defendants argue TCPA statutory damages can produce disproportionate liability and classes are inappropriate or unmanageable	Court held class treatment is superior and manageable here; concerns about hypothetical large damages are not grounds to deny certification and can be addressed later if liability/damages are shown

Key Cases Cited

Marek v. Chesny, 473 U.S. 1 (1985) (Rule 68’s purpose is to encourage settlement and avoid litigation)
Wal‑Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (rigorous analysis of Rule 23(a) prerequisites; commonality requirement)
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (predominance inquiry tests class cohesion for representation)
McCauley v. Trans Union, LLC, 402 F.3d 340 (2d Cir. 2005) (defendant’s consent to judgment for maximum liability can moot a plaintiff’s claim)
Cabala v. Crowley, 736 F.3d 226 (2d Cir. 2013) (Rule 68 offers and mootness in the Second Circuit)
Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78 (2d Cir. 2013) (Rule 12(b)(1) and the plaintiff’s burden to show Article III jurisdiction)
Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (individualized consent sources may defeat class certification)
Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (burden to establish Rule 23 requirements and consideration of individualized defenses)
Authors Guild, Inc. v. Google Inc., 721 F.3d 132 (2d Cir. 2013) (treatment of affirmative defenses in Rule 23(a) and (b) inquiries)