True Health Chiropractic, Inc. v. McKesson Corporation
896 F.3d 923
| 9th Cir. | 2018Background
- True Health and McLaughlin Chiropractic sued McKesson under the TCPA, alleging unsolicited advertising faxes (Sept. 2009–May 2010) sent without prior express permission or statutorily required opt-out notices.
- McKesson asserted consent defenses and produced three discovery exhibits (A, B, C) identifying putative class members by claimed consent method: product registration/EULAs (A), software-registration checkboxes/written consent/phone confirmations (B), and oral/email communications with sales reps (C).
- District court denied Rule 23(b)(3) class certification, finding individualized consent defenses would predominate; True Health appealed under Rule 23(f).
- On appeal, the Ninth Circuit (Fletcher, J.) reviewed whether the district court erred on (1) imposing an ascertainability requirement, (2) treating the FCC Solicited Fax Rule as applicable, and (3) refusing to certify subclasses despite McKesson’s consent defenses and evidence.
- The court held McKesson bears the burden to prove prior express invitation or permission (consent) as an affirmative defense, applied controlling precedent invalidating the FCC’s Solicited Fax Rule, affirmed denial for Exhibit C, reversed as to a large Exhibit A subclass, and remanded Exhibit B and Rule 23(a) issues to the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court applied an impermissible ascertainability requirement | Briseno prohibits a freestanding ascertainability gate; district court erred if it required administrative feasibility | District court did not impose such a requirement; certification denial was on predominance | Court: No Briseno error — ascertainability not imposed by district court |
| Whether FCC Solicited Fax Rule requires opt-out on solicited faxes (making consent irrelevant) | Solicited Fax Rule makes opt-out required for all faxes, so consent variations don't matter | Solicited Fax Rule is invalid; opt-out on solicited faxes is not required | Court: Bais Yaakov controls; Solicited Fax Rule invalid and not binding here |
| Who bears burden to prove consent | Plaintiff implied consent should be treated against defendant | Defendant: consent is an affirmative defense to be proven by defendant | Court: McKesson bears burden to prove prior express invitation/permission |
| Whether individualized consent defenses defeat predominance and whether subclasses should be certified | Classwide issues predominate; alternatively, subclasses corresponding to Exhibits A/B/C would resolve common issues | Consent defenses in Exhibits B and C involve individualized proof; thus predominance fails for whole class | Court: Affirmed denial for Exhibit C (individualized oral/email consents); reversed as to a large Exhibit A subclass (product registration/EULAs) which satisfies predominance; remanded Exhibit B and Rule 23(a) issues to district court |
Key Cases Cited
- Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (background on TCPA’s purpose regarding junk faxes)
- Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) (held FCC’s Solicited Fax Rule unlawful as to solicited faxes)
- Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017) (express-consent is an affirmative defense and defendant bears burden)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (predominance requires common questions capable of classwide resolution)
- Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (central common issues may permit class certification despite some individualized defenses)
- Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014) (standard of review for class-certification decisions)
- Sandusky Wellness Ctr. v. ASD Specialty Healthcare, 863 F.3d 460 (6th Cir. 2017) (discussed preclusion/binding effect of Bais Yaakov on other circuits)