Say What? Ninth Circuit Says Affirmative Defenses Can’t Stop Class Certification Unless Defendant Proves the Merits of the Defense as to Every Single Class MemberJust when you thought litigating Telephone Consumer Protection Act (TCPA) class actions was as unsafe as it could get for defendants, the Ninth Circuit said, “Not so fast.”

In McKesson v. True Health, two chiropractic practices sought to represent a class of plaintiffs who allegedly received unsolicited faxes containing advertisements in violation of the TCPA. The district court denied class certification under Fed. R. Civ. P. 23(b)(3) on the grounds that consent was the primary issue to be adjudicated under the TCPA and the defendant offered a substantial showing that whether class members had provided consent could only be determined individually. The Ninth Circuit reversed and, in the process, managed to run a wrecking ball through what many thought was well-settled law on the burden of proof at the class certification stage.

From Affirmative Defense to Burden of Proof

First, the Ninth Circuit detoured into a finding that consent is an affirmative defense in a TCPA case, a proposition that itself is not free from debate. The court then leaped from that conclusion to one even more radical: that because the defendant would bear the burden of proof on the merits of the consent defense at trial, the defendant also bore the burden of proving that consent was an individualized issue and that it predominated over common issues for class certification purposes. No other circuit has ever held that a defendant bears the burden of proof on any issue relating to class certification.

That’s enough bull in the class action china shop for one day, right? Wrong. The defendant’s showing that consent was an individualized issue consisted of proof of consent by various class members through various means. However, the defendant had not attempted to prove the presence or absence of consent as to each and every class member.

The Ninth Circuit concluded that McKesson had, therefore, only carried its burden of proving that consent was an individualized impediment to certification for some but not all class members. The Ninth Circuit also concluded that class members as to whom proof had been offered would be excluded from the class and the rest of the class could be certified. McKesson petitioned the Supreme Court for a writ of certiorari.

Amicus Brief Submitted to Supreme Court

On behalf of DRI, the Voice of the Defense BarTM, your friends and humble narrators here submitted an amicus brief urging the Supreme Court to review the case. DRI argued that the Ninth Circuit’s ruling effectively creates a presumption in favor of class certification in cases involving individualized affirmative defenses and impermissibly shifted the burden of proof on class certification. This, DRI argued, contravenes both Supreme Court precedent and the approach of every other circuit to address the issue.

Who bears the burden of proof on the merits of an issue at trial has nothing to do with whether the controversy as a whole is appropriate for class adjudication or the procedural requirements the reviewing court must follow in evaluating predominance under Rule 23. The case law until now has been uniform: The plaintiff bears the burden of proof on all issues pertaining to class certification. This case offers no sound reason in policy or in the text of Rule 23 to deviate from that long-settled approach.

DRI’s amicus brief further points out that to defeat class certification under the Ninth Circuit’s framework, the defendant is effectively forced to marshal the exact kind of individualized proof that class certification seeks to avoid. This, too, is a practical impossibility, such that the ruling effectively alters substantive law by gutting the defendant’s ability to rely on affirmative defenses when a claim is brought on a class basis. The Rules Enabling Act makes clear that a mere rule of civil procedure is not supposed to have such an effect.

The insupportable consequences of such a drastic change in settled class action law are particularly acute in the context of TCPA class actions since the TCPA provides for potentially ruinous uncapped statutory damages for even the most minor and most technical violations, whether or not they produce any real injury.

We are hopeful that the Supreme Court will grant review in this important case, as it has profound implications for class action practice.