Summary
The Sixth Circuit denied Humana, Inc.’s petition for permission to appeal under Federal Rule of Civil Procedure 23(f) from an order certifying a TCPA class action. The court concluded that Humana had not shown a sufficient likelihood of success, an applicable death-knell effect, a broadly significant unsettled question, or a posture favoring immediate review. The court also rejected Humana’s arguments concerning class-wide consent, ascertainability, expert methodology, and the alleged fail-safe class.
Topics
Practice areas
Questions Presented
- Whether Humana should receive permission under Federal Rule of Civil Procedure 23(f) to appeal the class-certification order.
- Whether the district court abused its discretion by finding that predominance was satisfied despite potentially individualized consent issues.
- Whether the district court's class definition was an impermissible fail-safe class.
- Whether the proposed use of affidavits and Humana's records to ascertain class membership warranted interlocutory review.
- Whether the death-knell, unsettled-question, and procedural-posture factors supported a Rule 23(f) appeal.
Holdings
- Permission to appeal under Rule 23(f) is committed to the court's broad discretion and is not routine; the relevant considerations include likelihood of success on the merits, the death-knell effect, whether the case presents a novel or unsettled question, and the posture of the case.
- The district court did not abuse its discretion in finding that common questions predominated even if consent could not be determined entirely on a class-wide basis.
- The district court did not create a fail-safe class by excluding current Humana account holders and persons who consented to receive calls on an account holder's behalf.
- Humana did not show a sufficient likelihood of success based on the proposed use of affidavits, Humana's records, or the expert's reverse-append methodology to identify and notify class members.
Key quotations
“We have “unfettered discretion whether to permit the appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.”” (at 2)
“Still, “the Rule 23(f) appeal is never to be routine.”” (at 2)
“A “fail-safe” class “includes only those who are entitled to relief.”” (at 7)
“Accordingly, the petition for permission to appeal is DENIED.” (at 9)
Factual background
Elliot brought a TCPA action alleging that Humana made prerecorded calls to members of a proposed class without the required consent. Humana's records included notes indicating that some recipients reported that Humana had reached a wrong number, and Humana submitted thirteen declarations asserting that certain individuals had consented to the calls. The district court certified a class and indicated that it could reconsider certification if individualized consent inquiries later overwhelmed common questions.
Procedural history
The United States District Court for the Western District of Kentucky certified a class in David Elliot's TCPA action against Humana. Humana petitioned the Sixth Circuit for permission to appeal under Rule 23(f). The Sixth Circuit denied the petition.