Bais Yaakov of Spring Valley v. ACT, Inc.

12 F.4th 81

• Court: Court of Appeals for the First Circuit
• Decided: August 30, 2021
• Docket: 20-1537P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 20-1537

BAIS YAAKOV OF SPRING VALLEY, on behalf of itself and all others similarly situated,

Plaintiff, Appellant,

v.

ACT, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Kayatta, and Barron, Circuit Judges.

Aytan Y. Bellin, with whom Bellin & Associates LLC was on brief, for appellant. Robert A. Burgoyne, with whom Perkins Coie LLP, Robert L. Leonard, and Doherty, Wallace, Pillsbury & Murphy, P.C., were on brief, for appellee.

August 30, 2021 KAYATTA, Circuit Judge. ACT, Inc., is a non-profit

entity that develops and administers the ACT college admissions

test. Bais Yaakov of Spring Valley is a small private high school

to which ACT sent three one-page faxes in 2012. Bais Yaakov has

since pursued ACT with a zeal that would impress even Hugo's

Inspector Javert. On behalf of itself and a class of similarly

situated recipients of faxes from ACT, Bais Yaakov alleges that

the faxes were unsolicited advertisements sent in violation of the

Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C.

§ 227(b)(1)(C). Bais Yaakov seeks injunctive relief and statutory

damages in an amount ACT estimates to exceed $400,000,000.

After almost eight years of litigation -- including an

interlocutory appeal to this court, see Bais Yaakov of Spring

Valley v. ACT, Inc., 798 F.3d 46, 46 (1st Cir. 2015) -- the district

court entered judgment against Bais Yaakov. It found that class

certification was unwarranted and that Bais Yaakov's individual

claim was rendered moot by ACT's offer to pay the full amount of

that claim ($46,500) and its promise not to send further faxes to

Bais Yaakov. While we see no abuse of discretion in the denial of

class certification, we vacate the judgment because Bais Yaakov's

own claim for damages is not quite moot. Our reasoning follows.

- 2 - I.

In 2005, Bais Yaakov filled out a High School Code

Request Form, on which it provided its fax number. Students use

the High School Code number to have their ACT test scores reported

to their high school. On the form, Bais Yaakov checked a box

indicating that it wanted to administer certain standardized

tests, that it wanted to receive its students' test scores, and

that it wanted to receive SAT or ACT publications.

Seven years later, ACT sent three faxes to Bais Yaakov

over the course of three months. The first fax was a one-page

flyer stating in large bold letters, "Don't forget to register for

the ACT!" Underneath, the fax directed counseling staff to

"[r]emind" students of the next ACT test date, which it featured

prominently. It listed the registration deadlines for the test

date and advised that "[s]tudents can meet the . . . deadline by

registering on-line" at a specified ACT web address. In the top-

left corner, the fax presented the name "ACT" above the words

"advancing lives."

The second fax was identical to the first but with a

different test date and corresponding registration deadlines.

The third fax contained what appears to be an image of

a crowd cheering at a baseball game, with the words "Give Your

Students the Home-Field Advantage" superimposed on one side and

"ACT" on the other. The bottom of the image stated, "Become an

- 3 - ACT Test Center." Beneath the image was more text, which said,

among other things: "By offering the ACT at your high school you

provide your students with a competitive edge."; "Your school can

benefit too. Your school staff will be compensated for assuming

the roles of test supervisor, room supervisors, and proctors.";

and "The curriculum-based ACT is accepted by all 4-year colleges

and universities in the U.S." (emphasis omitted).

Bais Yaakov alleges that these three faxes are among

over 28,000 unlawfully faxed advertisements ACT sent to over 7,000

schools across the country between 2008 and 2012.

II.

A.

The TCPA prohibits sending advertisements to fax

machines, but with two principal exceptions: An advertisement may

be sent to a fax machine (1) if the person to whom it is sent has

given "prior express invitation or permission, in writing or

otherwise," 47 U.S.C. § 227(a)(5); or (2) if certain conditions

are satisfied, one of which requires the inclusion of an opt-out

notice on the fax, id. § 227(b)(1)(C). None of the faxes at issue

in this appeal contains an opt-out notice, so any that are

advertisements are unlawful if they were sent without prior express

invitation or permission.

By regulation, the Federal Communications Commission

(FCC) promulgated a substantial further limitation on sending

- 4 - advertisements by fax. In its so-called Opt-Out Regulation (also

referred to as the Solicited Fax Rule), the agency decreed that

even faxes sent with prior express invitation or permission must

contain an opt-out notice. See Rules & Regulations Implementing

the Telephone Consumer Protection Act of 1991; Junk Fax Prevention

Act of 2005, 71 Fed. Reg. 25,967, 25,971-72 (May 3, 2006) (formerly

codified at 47 C.F.R. § 64.1200(a)(4)(iv)); Bais Yaakov of Spring

Valley v. FCC, 852 F.3d 1078, 1080 (D.C. Cir. 2017) (Kavanaugh,

J.). ACT included no opt-out notice in any of its faxes, so if

the Opt-Out Regulation is valid, prior express invitation or

permission would be no defense. Instead, ACT's liability to any

recipient would turn entirely on whether the fax was an

advertisement.

The FCC defines the term "advertisement" for purposes of

the TCPA as "any material advertising the commercial availability

or quality of any property, goods, or services." 47 C.F.R.

§ 64.1200(f)(1); see also 47 U.S.C. § 227(a)(5) (using similar

language to define the term "unsolicited advertisement"). To

classify a communication as "advertising," the agency looks to the

communication's "primary purpose." In re Rules & Regulations

Implementing the Telephone Consumer Protection Act of 1991, 31 FCC

Rcd. 13,289, 13,291 (2016).

- 5 - B.

Bais Yaakov proposed two alternative classes, labeled

Class A and Class B. With Class A, Bais Yaakov sought to include

only recipients of "unsolicited" fax "advertisements" from ACT

containing no opt-out notice. With Class B, Bais Yaakov sought to

take advantage of the Opt-Out Regulation by broadening the class

to include recipients of any (even solicited) fax advertisements

from ACT that did not contain an opt-out notice as required by the

regulation.

With the parties' consent, the district court considered

first whether the Opt-Out Regulation was valid. In finding the

regulation to be invalid, the district court deemed binding a

decision to that effect by the Court of Appeals for the D.C.

Circuit. See Bais Yaakov of Spring Valley v. ACT, Inc., 328 F.R.D.

6, 10 (D. Mass. 2018) (citing Bais Yaakov, 852 F.3d at 1083).1

Having eliminated the Opt-Out Regulation as a tool for

establishing that every fax sent by ACT necessarily violated the

TCPA because ACT never included opt-out notices, the district court

turned its attention to the two issues raised by the TCPA's

1 Following the D.C. Circuit's ruling in Bais Yaakov, the FCC eventually repealed the Opt-Out Regulation. See In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991 Junk Fax Prevention Act of 2005 Petitions for Reconsideration &/or Declaratory Ruling & Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv) Regarding the Commission's Opt-Out Notice Requirement for Faxes Sent with the Recipient's Prior Express Permission, 35 FCC Rcd. 3079 (2020).

- 6 - exceptions from its prohibition on advertisements: Did the fax

contain an advertisement? And, if so, was it unsolicited (i.e.,

sent without prior express invitation or permission)? As to these

two issues, the district court took the standard Rule 23 approach:

It did not try to resolve the issues; rather, it properly tried to

decide whether Bais Yaakov had shown that resolution of the issues

could be accomplished on a common, class-wide basis. See Amgen

Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459–60 (2013)

("[T]he office of a Rule 23(b)(3) certification ruling is not to

adjudicate the case; rather it is to select the 'metho[d]' best

suited to adjudication of the controversy fairly and efficiently."

(second alteration in original)).

Looking first at the request to certify Class B, the

district court found that the invalidity of the Opt-Out Regulation

permitted a defense based on prior express permission. Assaying

the record, it then concluded that the need to adjudicate such a

defense would require an examination of the circumstances of each

class member and its communications with ACT to determine whether

that class member gave the requisite permission. And the need to

engage in such an individual inquiry meant that common issues would

not predominate as required in order to certify a class under

Rule 23(b)(3). See In re Asacol Antitrust Litig., 907 F.3d 42,

51–52 (1st Cir. 2018).

- 7 - With proposed Class A, Bais Yaakov sought to eliminate

this diversity among class members by limiting that class to

recipients of unsolicited faxes. The district court rejected this

attempt, finding that such a class would constitute a "fail-safe

class," i.e., a class that would bind class members only if they

won. See In re Nexium Antitrust Litig., 777 F.3d 9, 22 & n.19

(1st Cir. 2015). The district court then reasoned that if the

class were redefined to include recipients of any faxes from ACT,

it would suffer from the same defects as did Class B.

Having denied class certification, the district court

turned to Bais Yaakov's individual claim, on which the parties had

cross-moved for summary judgment. See Bais Yaakov of Spring Valley

v. ACT, Inc., 438 F. Supp. 3d 106, 108 (D. Mass. 2020). The

district court found that genuine disputes of material fact

-- namely, whether the three faxes identified by Bais Yaakov

qualified as advertisements and whether Bais Yaakov gave the

requisite permission -- precluded granting summary judgment for

either party. Id. at 109–10.

Later, ACT moved to dismiss Bais Yaakov's claim as moot.

According to the district court, by that point ACT had

"unconditionally tendered to [Bais Yaakov] all the statutory

damages that it [sought] on an individual basis." Bais Yaakov of

Spring Valley v. ACT, Inc., 461 F. Supp. 3d 3, 5 (D. Mass. 2020).

As to injunctive relief, ACT had not sent Bais Yaakov a fax since

- 8 - 2012, and it had agreed not to send any faxes in the future in

violation of the TCPA. Id. at 4–5. The district court therefore

found the case moot and dismissed it. Id. at 5.

Bais Yaakov now appeals three rulings of the district

court: the holding that the Opt-Out Regulation is invalid, the

denial of class certification, and the dismissal of Bais Yaakov's

individual claim as moot. Bais Yaakov also asks us to review the

district court's denial of its motion for summary judgment, but

"[i]t is settled beyond peradventure that we lack jurisdiction to

hear appeals from the routine denial of summary judgment motions

on the merits." Morse v. Cloutier, 869 F.3d 16, 31 (1st Cir.

2017).

III.

We consider first the validity of the Opt-Out

Regulation. The parties argue at length over whether the decision

of the D.C. Circuit finding the regulation invalid binds this

court. We sidestep that issue because we find the D.C. Circuit's

decision -- whether binding or not -- correct, largely for the

reasons cogently set forth in that opinion. See Bais Yaakov, 852

F.3d at 1081–83; see also Physicians Healthsource, Inc. v.

Cephalon, Inc., 954 F.3d 615, 624 n.11 (3d Cir. 2020) (declining

to decide whether Bais Yaakov was binding on other circuits because

it agreed with the D.C. Circuit's reasoning); Sandusky Wellness

Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 467 &

- 9 - n.1 (6th Cir. 2017) (treating the D.C. Circuit's ruling as binding

and separately agreeing with its reasoning); Nack v. Walburg, 715

F.3d 680, 682 (8th Cir. 2013) (noting that the FCC's authority to

promulgate the Opt-Out Regulation was "questionable").

When a court reviews an agency's construction of a

statute the agency administers, it conducts the familiar Chevron

two-step analysis:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. . . . [I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

842–43 (1984) (footnote omitted). In Bais Yaakov, the D.C. Circuit

stopped after the first step. 852 F.3d at 1082. It held that

Congress had spoken directly about whether solicited fax

advertisements required opt-out notices (giving the FCC no

authority to issue a regulation on the matter), because the text

of the statute explicitly required opt-out notices only on

unsolicited fax advertisements and said nothing about requiring

such notices on solicited fax advertisements. See id.; 47 U.S.C.

§ 227(b)(2)(C)(iii) (prohibiting the sending via fax of "an

unsolicited advertisement, unless [among other things,] the

- 10 - unsolicited advertisement contains a notice meeting the

requirements under" another provision of the statute).

This reasoning makes good sense. The Supreme Court has

directed courts to apply "traditional tools of statutory

construction" in determining Congress's intent, Chevron, 467 U.S.

at 843 n.9, and it is a "settled rule that [courts] must, if

possible, construe a statute to give every word some operative

effect," Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157,

167 (2004). Moreover, in another subsection of the TCPA, Congress

placed requirements not just on unsolicited fax advertisements but

on "any communication" or "any message" sent via fax, 47 U.S.C.

§ 227(d)(1)(A), (B), demonstrating that when Congress wanted to

regulate faxes broadly, it used broad language to do so. See

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (explaining

the "general principle of statutory construction" that courts

presume Congress has acted "intentionally and purposely" when it

"includes particular language in one section of a statute but omits

it in another section of the same Act" (quoting Russello v. United

States, 464 U.S. 16, 23 (1983))). To read the statute as requiring

opt-out notices on solicited advertisements would be to remove the

word "unsolicited" from the provision discussing opt-out notices

or to ink in new provisions discussing solicited faxes.

The panel dissent from the D.C. Circuit's opinion in

Bais Yaakov criticized the majority for "fail[ing] to see the FCC's

- 11 - rationale for requiring that all fax ads include an informative

opt-out notice," which the agency had justified as an

interpretation of what it means for a fax to be sent with "prior

express invitation or permission" and therefore "solicited." 852

F.3d at 1083-84 (Pillard, J., dissenting). But, assuming that the

FCC might justifiably conclude that a fax is not solicited within

the meaning of the TCPA if the immediately preceding fax did not

include an opt-out mechanism, we do not see how the agency

reasonably could have concluded that a particular fax is

unsolicited unless it itself contains an opt-out notice. And,

even if the presence of an opt-out notice bears on whether the

subsequently received fax is solicited, the first fax received

after the recipient provides express permission cannot be

considered unsolicited under any plausible construction of the

term. Thus, as the FCC's rule applied to every fax sent, it

required an opt-out notice on at least some faxes that were

indisputably solicited and cannot be sustained as an

interpretation of what "solicited" means. Nor is it our role to

rewrite the regulation, even if one assumes that some alternative

version might suffice.

Bais Yaakov argues, however, that our precedent compels

a different understanding of whether the FCC has authority to

require opt-out notices on solicited fax advertisements. It

attempts to analogize to Alexander v. Treasurers of Boston

- 12 - University, 766 F.2d 630 (1st Cir. 1985), a case concerning the

so-called Solomon Amendment, which denied federal financial aid to

students who were required to register for the military draft but

failed to do so. Id. at 632. To implement the Amendment, the

Secretary of Education obviously needed to know whether each

financial aid applicant was required to register for the draft

and, if so, whether the applicant had in fact registered. So the

Secretary simply required each applicant as a condition of

receiving aid to certify either that he or she was registered or

was not required to register. Id. at 632–33. We found that

requiring applicants for aid to indicate that they were eligible

for that aid, with a "minimum of fuss and inconvenience," id. at

638, to be within the Secretary's authority to promulgate

regulations so as to do the job Congress assigned it. "[T]he

Secretary is simply saying that if an individual is unwilling to

tell the government that he or she fulfills the conditions for

aid, the government will not dispense it." Id. at 639.

The analogy to Alexander is unpersuasive. There, as

explained, we concluded that, where the Secretary was uncertain

whether a particular aid applicant was within the category of

people who might be denied aid under the statute, it could impose

a burden on that individual in the name of determining whether he

or she was in fact within that regulable category. Here, Bais

Yaakov asks us to hold something very different: that an agency

- 13 - can regulate a particular type of fax that it knows with certainty

is necessarily beyond its regulatory authority -- specifically, a

first fax that is plainly a solicited one -- in order to determine

whether a subsequently received fax does fall within the scope of

its authority. Bais Yaakov has not explained why we can or should

extend Alexander in that way. As such, the Opt-Out Regulation

finds no haven in Alexander. See Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81, 91-92 (2002).

IV.

We turn our attention next to Bais Yaakov's appeal of

the district court's order denying class certification. In

briefing that challenge, the parties sensibly train their

arguments on the requirements of Rule 23(b)(3) of the Federal Rules

of Civil Procedure, which states in pertinent part as follows: "A

class action may be maintained if . . . the court finds that the

questions of law or fact common to class members predominate over

any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and

efficiently adjudicating the controversy."

In practice, litigation over these requirements often

reduces itself to a contest in which the party opposing

certification points to issues that it claims will need to be

decided separately for many class members. In turn, the putative

- 14 - class representative tries to carry the burden of convincing the

court either that prevailing on any of those issues is not

important to obtaining the remedy sought, that the issues can be

adjudicated in a manner that produces a common answer for all class

members, or that, to the extent individual issues remain, they can

be resolved in a manner that is both practicable and protective of

the parties' rights. See Asacol, 907 F.3d at 51 ("The aim of the

predominance inquiry is to test whether any dissimilarity among

the claims of class members can be dealt with in a manner that is

not 'inefficient or unfair.'" (quoting Amgen, Inc., 568 U.S. at

469)). "Inefficiency can be pictured as a line of thousands of

class members waiting their turn to offer testimony and evidence

on individual issues." Id. "Unfairness is equally well pictured

as an attempt to eliminate inefficiency by presuming to do away

with the rights a party would customarily have to raise plausible

individual challenges on those issues." Id. at 51–52.

True to form, ACT points to five issues allegedly central

to the relief sought that ACT claims cannot be resolved fairly

without an unmanageable need to consider the varying circumstances

of individual class members. These issues are: (1) Did the school

actually receive a fax from ACT? (2) Which fax did it receive?

(3) Was the fax an advertisement when viewed in the circumstances

of that recipient? (4) Does that school have the capacity to sue

or belong to a class? and (5) Did the recipient of the fax

- 15 - advertisement provide prior express permission for ACT to send the

advertisement by fax?

The district court sidestepped the first four of these

issues, training its attention on the fifth, the question of

permission: Did a recipient of a faxed advertisement give ACT

prior express permission to send the advertisement by fax? Under

Class A, this issue must be resolved to determine even if someone

is a class member (i.e., received an "unsolicited" fax). Under

Class B, this issue must be resolved to determine whether ACT has

a defense on the merits (i.e., that it received prior express

permission to send the fax). 47 U.S.C. § 227(a)(5), (b)(1)(C).

In either instance, the pivotal Rule 23 question is whether the

record reasonably shows that some putative class members may have

permitted ACT to send by fax what ACT faxed them and, if so,

whether there is a fair and efficient method for culling those

consenting recipients from the class. The district court found

that ACT presented sufficient evidence that the class likely

included members who invited ACT to send any materials by fax, and

that to identify those members the court would have to "parse

through each unique relationship" between every class member and

ACT; hence, certification of Class B was precluded for lack of

predominance.

As to Class A, the district court found that limiting

the definition of class members to those who received "unsolicited"

- 16 - faxes created a prohibited "fail-safe class," Messner v.

Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012),

and that, in any event, no jiggering with the class definition

would eliminate the need to decide the issue of permission (or

solicitation) for each putative class member. We now review that

decision, reversing only if we find an abuse of discretion

(including any error of law). Asacol, 907 F.3d at 51.

B.

In deciding whether individual issues predominate over

common questions, a court must not rely on mere speculation that

individual issues may arise. See Waste Mgmt. Holdings, Inc. v.

Mowbray, 208 F.3d 288, 298 (1st Cir. 2000); Bridging Cmtys. Inc.

v. Top Flite Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016)

(concluding that the district court abused its discretion in

finding that issues of consent predominated where the defendant

"did not offer any information or evidence to support that

theory"). Rather, it should consider only those issues that would

likely arise if an individual class member's claims were being

adjudicated on the merits. See Mowbray, 208 F.3d at 298; Madison

v. Chalmette Ref., L.L.C., 637 F.3d 551, 555 (5th Cir. 2011). In

so doing, a court considers "the probable course of the litigation"

so as to "formulate some prediction as to how specific issues will

play out in order to determine whether common or individual issues

predominate." Mowbray, 208 F.3d at 298. Even then, "the mere

- 17 - fact that . . . concerns may arise and may affect different class

members differently does not compel a finding that individual

issues predominate over common ones." Id. at 296. To the

contrary, "we have recognized that a class may be certified

notwithstanding the need to adjudicate individual issues so long

as the proposed adjudication will be both 'administratively

feasible' and 'protective of defendants' Seventh Amendment and due

process rights.'" Asacol, 907 F.3d at 52 (quoting Nexium, 777

F.3d at 19). So, here, we ask whether there is more than

speculation that individual issues of permission may arise and, if

so, whether Bais Yaakov has shown that those who gave ACT prior

express permission to send advertisements can be culled from the

class in a way that is administratively feasible and protective of

ACT's due process rights.

We start with the fact that some unknown number of the

putative class members sent a form to ACT providing a fax number

and requesting that ACT send them ACT "publications." Indeed,

Bais Yaakov itself both sent such a request and claims to be a

typical member of the classes it seeks to represent. See Fed. R.

Civ. P. 23(a)(3). Further, according to the declaration of an ACT

official, class members routinely provided ACT with their fax

number when inquiring about becoming a test center, requesting a

High School Code number, seeking information about the dates the

test will be administered, or asking for copies of publications.

- 18 - At least two of the three faxed documents to which Bais Yaakov

points as advertisements are notices of the exam dates and sign-

up deadlines -- i.e., just the sort of information that a school

asking for ACT publications would likely expect to receive by way

of the fax number it supplied when asking for the documents. The

third document, in turn, concerned the opportunity to administer

ACT exams. And because the typical class member (e.g., Bais

Yaakov) registered interest in giving such exams, one can easily

see how a request by that school to receive ACT publications would

cover such a document.

Nevertheless, as Bais Yaakov points out, the TCPA

requires "express permission." "Express permission" means

"[p]ermission that is clearly and unmistakably granted by actions

or words, oral or written." Permission, Black's Law Dictionary

(11th ed. 2019); cf. id. (defining "implied permission" as

"permission that is inferred from words or actions"). Furthermore,

FCC rules (unchallenged by either side) provide that in gauging

whether express permission was provided, we consider the

understanding of the recipient. In re Rules & Regulations

Implementing the Telephone Consumer Protection Act of 1991, 18 FCC

Rcd. 14,014, 14,129 (2003) ("Express permission to receive a faxed

ad requires that the consumer understand that by providing a fax

number, he or she is agreeing to receive faxed advertisements.").

So we do not reject the possibility that, notwithstanding the

- 19 - strong inference to be drawn from supplying a fax number while

requesting a publication, any given school may not have understood

its communications to invite ACT to send by fax that which it sent.

There is evidence, furthermore, that Bais Yaakov itself did not

understand its request for publications to convey perpetual

permission for ACT to send Bais Yaakov any advertisements. After

all, Bais Yaakov objected when it received the faxed publications

from ACT. And Bais Yaakov had no longstanding relationship with

ACT that might have lent further support to the notion that it

received by fax what it clearly asked to receive by fax. To the

contrary, the record as described by the parties paints a picture

of faxes sent to Bais Yaakov out-of-the-blue after years of no

contact.

There is evidence, though, that other members of the

putative class did not share Bais Yaakov's understanding

concerning the express requests that they receive ACT

publications. Indeed, ACT presented concrete examples of schools

that did not share Bais Yaakov's understanding. These examples

took the form of declarations from representatives of seventy-

eight schools with whom ACT corresponded. The declarants confirmed

that their schools provided ACT with fax numbers, and that they

frequently requested and received publications from ACT by fax.

When shown the three faxed ACT publications alleged by Bais Yaakov

to be advertisements, they replied that the information contained

- 20 - in the publications was "integral to" the school's ongoing

interactions with ACT, and that "ACT would have had permission

from the declarant or other school personnel" to send "these types

of informational communications using any available type of

communication, including facsimile."

Bais Yaakov makes no argument that the concrete examples

offered by ACT did not exemplify a larger subset of similar class

members that could only be identified were one to parse through

the circumstances of each school in the putative class. The fact

that many schools expressly asked when giving their fax numbers to

receive ACT publications likely suggests why Bais Yaakov makes no

argument that ACT's examples constitute just "a few unusual class

members, who can be picked off by the defendant." Asacol, 907

F.3d at 57 (citing Halliburton v. Erica P. Jong Fund, Inc., 573

U.S. 258, 276 (2014).

Rather, Bais Yaakov argues that ACT would have no

plausible defense of consent even in the circumstances presented

by the proffered examples. To support that argument, Bais Yaakov

points out that the key sentence concerning permission to send the

faxes employs the conditional "would have" formulation, rather

than stating that ACT did in fact have permission to send the type

of information contained in the faxes appended to the complaint.

Certainly the syntax could have been clearer. But given the prior

communication providing a fax number and asking to receive ACT

- 21 - publications, we think that a factfinder could reasonably read the

declarations as reflecting a lack of memory about whether the faxes

were received, not a doubt about whether they were invited if

received. A prior paragraph in each declaration explains that

the declarant has been told that ACT might have sent to the

recipient the three faxes appended to Bais Yaakov's complaint.

Rather than claiming a rather remarkable memory about exactly what

was received years ago, each declarant simply points to the faxes

appended to Bais Yaakov's complaint and confirms that those faxes

were the type of publications the school was requesting to receive

by fax, and that ACT "would have had permission" to send them. In

short, a factfinder could reasonably read the declarations as

conveying the point that "I do not recall if ACT sent these

specific faxes, but if it did, it would have had my permission to

do so."

Bais Yaakov argues that the Seventh Circuit concluded

otherwise in construing a recipient's declaration that the

recipient "would have given" consent. Physicians Healthsource,

Inc. v. A-S Medication Sols., LLC, 950 F.3d 959, 966 (7th Cir.

2020) (emphasis omitted). In so holding, it appears that the

Seventh Circuit read the condition implied by that statement as

"if asked, I would have given consent (but I was never asked)."

While it may have been reasonable in the context of that case to

read the statements as indicating that the recipients never gave

- 22 - permission at all, here the context for at least some class members

is markedly different.

Many schools were obviously trying to assist their

students in taking the ACT test and, in many cases, in serving as

test centers. As the schools' representatives explain, they

therefore wanted information about "the nature of the test, how

scores are used, how students can prepare for the test, test

registration deadlines, and related topics." In this context, a

factfinder could determine that the request for ACT "publications"

was clearly understood by the school to be a request for notice of

exam dates, deadlines for sign-ups, and -- in the case of test

centers -- opportunities to give exams. This possibility finds

reinforcement in some instances where a school, unlike Bais Yaakov,

repeatedly requested information year in and year out. As best

the parties' briefs reveal, Bais Yaakov was the only one of out of

thousands of recipients that complained about receiving faxes from

ACT. Silence is not express permission. But widespread and

prolonged silence of this type strongly suggests that other

recipients were more like ACT's examples than they were like Bais

Yaakov.

Bais Yaakov points out (correctly) that the TCPA

requires permission to send advertisements, not just faxes. To

leverage that point, Bais Yaakov argues that the three subject

faxes were advertisements. The declarations, though, deflect the

- 23 - thrust of this argument because they expressly refer to the

specific documents appended to the complaint. In short, even if

we assume that these documents are advertisements, ACT would not

incur liability if in the context of a particular relationship a

request for ACT publications was clearly understood as an

invitation to fax what was faxed. See Gorss Motels, Inc. v.

Safemark Sys., LP, 931 F.3d 1094, 1100 (11th Cir. 2019) ("Although

express permission requires a 'clear[] and unmistakabl[e]

communicat[ion],' it does not require that a recipient state

specifically that his permission includes faxed advertisements.").

On this record, we see no abuse of discretion in the

district court's finding that there were, among the thousands of

yet-to-be-canvassed putative class members, schools that could be

found by the factfinder to have given the requisite permission.

So that left a problem: How could one identify and cull out those

who did give express permission to send what was sent?

Bais Yaakov has made no argument that the court could

cull from the class the consenting schools in an administratively

feasible way, protective of ACT's rights. Compare Sandusky

Wellness Ctr., 863 F.3d at 469 ("Identifying solicited fax

recipients through a form-by-form inquiry is sufficiently

individualized to preclude class certification."), with Smilow v.

Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003)

("Common issues predominate where individual factual

- 24 - determinations can be accomplished using computer records,

clerical assistance, and objective criteria -- thus rendering

unnecessary an evidentiary hearing on each claim."). The district

court therefore reasonably determined that individual issues of

permission would predominate over common questions for both

Class A and Class B. See Asacol, 907 F.3d at 51 (explaining that

review of class-certification decision for abuse of discretion

involves clear-error review of "'fact-dominated' issues" (quoting

In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d

6, 17 (1st Cir. 2008))); Díaz-Alarcón v. Flández-Marcel, 944 F.3d

303, 312 (1st Cir. 2019) (explaining that a "judge's choice between

competing, but rational, views cannot be clearly erroneous"

(citing Anderson v. City of Bessemer City, 470 U.S. 564, 573–74

(1985))).2

C.

Bais Yaakov has asked that, were we to affirm the

district court's denial of class certification, we should direct

the district court to consider revising the class definitions as

Bais Yaakov now proposes. As we have explained, Bais Yaakov had,

in pertinent part, defined Class B as consisting of those whom ACT

sent "a facsimile advertisement" and Class A as consisting of those

2 We need not reach the question of whether Class A as defined initially by Bais Yaakov would nevertheless be rejected as a fail-safe class were there otherwise no predominance problem.

- 25 - whom ACT sent "an unsolicited facsimile advertisement." In a

footnote on the last page of Bais Yaakov's reply memorandum in

support of its motion for class certification before the district

court, Bais Yaakov suggested that, if necessary, the district court

could narrow Class B to consist of those whom ACT sent "a facsimile

whose content was identical or substantially similar to the content

of any of the [three] facsimiles" Bais Yaakov says it received and

that the district court could narrow Class A the same way but

concerning an "unsolicited facsimile." Neither below nor on appeal

has Bais Yaakov explained how these alternative definitions might

cure the problems we have just discussed. Indeed, our discussion

effectively assumed -- favorably to Bais Yaakov -- that each

putative class member received those three documents from ACT via

fax. In short, the proposed amendment would not eliminate the

need to resolve individual issues of permission.

To summarize: The typical school sent ACT a form

providing the school’s fax number and expressly asking to be sent

ACT publications. The documents ACT then sent in return to the

supplied fax number appear on their face to provide just the sort

of information that a school would want to receive after requesting

ACT publications. These common facts raise quite a strong

inference that the school sending such a form understood its

request as inviting ACT to fax the documents that it faxed. After

all, why supply the fax number and request ACT publications if not

- 26 - to receive the publications by fax? Bais Yaakov does have a point

in arguing that its own circumstances may be found to belie any

inference that it had any such understanding. The faxes it

received were sent seven years later, and it promptly objected.

But the evidence submitted by ACT makes clear that the

circumstances of at least some other schools was to the contrary,

actually reinforcing the strong inference that the forms sent to

ACT were clearly understood and intended to be read as invites to

send by fax that which was faxed. Whether that is so in any

individual case may be a close question which we need not resolve.

We hold simply that it is a genuine question that may well be

answered one way or the other for any given school, and beyond

arguing on the merits that no school gave permission to fax the

documents -- an argument we have now rejected -- Bais Yaakov offers

no means by which to answer that crucial question on a common

basis. Hence, the district court did not abuse its discretion in

finding that the proposed classes could not be certified.

We consider, finally, Bais Yaakov's appeal from the

dismissal of its own individual claim as moot. After denying Bais

Yaakov's motion to proceed as a class action, the district court

turned to the merits of the case, eventually denying in pertinent

part contending motions for summary judgment on the questions of

whether the three faxes appended to the complaint were

- 27 - advertisements and whether Bais Yaakov had permitted ACT to send

them by fax. ACT thereupon sent Bais Yaakov a check in the amount

of $45,600, which Bais Yaakov does not dispute is the most that it

can recover in this lawsuit. In a letter accompanying the check,

ACT also promised to honor the check no matter the outcome of the

case, and it offered to deposit the check with the district court,

to be held until any appeal is completed and final judgment

entered.3 ACT also promised not to send Bais Yaakov any further

faxes "that violate the TCPA," upon pain of paying "$1,500 should

it send any such fax." The record also reflects that ACT has sent

no faxes of any type to Bais Yaakov since 2012.

Bais Yaakov rejected the check and the accompanying

promises. Unimpressed, the district court concluded that Bais

Yaakov had received all that it could possibly receive as damages,

and that it had no basis to obtain injunctive relief because "the

allegedly wrongful behavior could not reasonably be expected to

recur." Bais Yaakov, 461 F. Supp. 3d at 4 (quoting Am. C.L. Union

of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 55 (1st Cir.

2013)).

3 The letter stated, "In all events, ACT hereby commits to paying $45,600 to Bais Yaakov, by way of the payment tendered with this letter or through other means as necessary at the conclusion of this litigation." It also stated that "this tendered payment is unconditional and irrevocable."

- 28 - In this very lawsuit, we previously considered and

rejected a prior attempt by ACT to moot the litigation by tendering

an offer of judgment under Rule 68 of the Federal Rules of Civil

Procedure. See Bais Yaakov of Spring Valley v. ACT, 798 F.3d 46

(1st Cir. 2015). In so doing we expressed concern about the threat

to meritorious class actions posed by sanctioning efforts to cut

off Rule 23 certification by mooting the individual claims of the

named plaintiff. Id. at 48–49. Nevertheless, we also recognized

uncertainty regarding the weight attributed by the Supreme Court

to such a concern. Compare Deposit Guar. Nat'l Bank v. Roper, 445

U.S. 326, 339 (1980) ("Requiring multiple plaintiffs to bring

separate actions, which effectively could be 'picked off' by a

defendant's tender of judgment before an affirmative ruling on

class certification could be obtained, obviously would frustrate

the objectives of class actions."), with Genesis Healthcare Corp.

v. Symczyk, 569 U.S. 66, 78 (2013) (describing that line from Roper

as dicta and explaining that Roper's holding turned on the named

plaintiff "possess[ing] an ongoing, personal economic stake in the

substantive controversy –– namely, to shift a portion of attorney's

fees and expenses to successful class litigants"). So we

ultimately based our rejection of the Rule 68 pick-off gambit on

a prediction that the Supreme Court would find that a rejected

Rule 68 offer provides no actual relief. See Bais Yaakov, 798

F.3d at 52.

- 29 - The Supreme Court has since held just that: "An

unaccepted settlement offer -- like any unaccepted contract offer

-- is a legal nullity, with no operative effect." Campbell-Ewald

Co. v. Gomez, 577 U.S. 153, 162 (2016) (quoting Genesis Healthcare,

569 U.S. at 81 (Kagan, J., dissenting)). So the question before

us is whether there is good reason to reach a different result

when a check, rather than a Rule 68 offer, is tendered.

The precedent is admittedly uncertain and sparse on this

subject. After all, not many plaintiffs walk away from an offer

to pay 100% of what they seek. Nevertheless, there are reasons to

conclude that ACT's tender of a check and associated promises did

not moot Bais Yaakov's claims. Bais Yaakov's self-interest in

appealing the denial of class certification might have been reason

enough depending on how well Roper stands up in light of Genesis,

see Campbell-Ewald, 577 U.S. at 165 ("While a class lacks

independent status until certified, a would-be class

representative with a live claim of her own must be accorded a

fair opportunity to show that certification is warranted."

(citation omitted)), though we have now concluded the district

court did not err in denying class certification. In any event,

as Justice Thomas pointed out, at common law unconditionally

offering funds while still denying liability is not a tender that

requires the end of a lawsuit. Id. at 170-71 (Thomas, J.,

concurring in the judgment). Most narrowly, the transmittal of an

- 30 - ordinary check does not differ for present purposes from an offer

to pay: The recipient has a promise, but no funds. As the ancient

proverb goes, "[t]here's many a slip 'twixt the cup and lip." 4

The Greek Anthology 21 (W.R. Paton trans., 1918). Indeed, the

Rule 68 offer at least conveys the ability to obtain a judgment,

while the check conveys only a hope that the bank account will

have the promised funds. Cf. id. at 166 (majority opinion)

(reserving judgment on whether a deposit of funds with the court

and entry of judgment in the amount of those funds would moot the

case); id. at 186 & n.2 (Alito, J., dissenting).4 So, as best we

can tell, Bais Yaakov's damage claim is not moot.

Finally, there is Bais Yaakov's request for injunctive

relief. We find no error in the district court's finding that

ACT's cessation of sending faxes to Bais Yaakov since 2012, its

deletion of Bais Yaakov's fax number from ACT's database, and its

admission that any further faxing to ACT would render ACT liable,

all combine to establish that ACT's allegedly wrongful behavior as

to Bais Yaakov "could not reasonably be expected to recur." Bais

4 Compare Chen v. Allstate Ins. Co., 819 F.3d 1136, 1144–46 (9th Cir. 2016) (reasoning that the defendant's deposit of the full amount of plaintiff's claims in an escrow account did not moot the plaintiff's claim since the plaintiff had not "actually or constructively received" the money), with Leyse v. Lifetime Ent. Servs., LLC, 679 F. App'x 44, 48 & n.2 (2d Cir. 2017) (summary order) (concluding that the district court properly entered judgment on the plaintiff's individual claim where the defendant deposited the full amount recoverable by the plaintiff with the clerk of court).

- 31 - Yaakov, 461 F. Supp. 3d at 4 (quoting Am. C.L. Union of Mass., 705

F.3d at 55).

Bais Yaakov makes no other argument that its individual

claim for injunctive relief should survive if we both affirm the

denial of class certification and find no error in the district

court's finding that Bais Yaakov cannot reasonably be expected to

receive any more faxes from ACT after eight years of silence and

the express assurances tendered.

VI.

For the foregoing reasons, we affirm the district

court's denial of class certification and its dismissal of the

claim for injunctive relief. We otherwise vacate the judgment and

remand for further proceedings.

- Concurring Opinion Follows -

- 32 - BARRON, Circuit Judge, concurring. This case raises a

question like the one that we confronted in In Re Asacol Antitrust

Litig., 907 F.3d 42 (1st Cir. 2018): Does Federal Rule of Civil

Procedure 23's predominance requirement permit certification of a

class whose members could prove their claim -- at least in part -

- only through individual testimony? It is easy enough to see why

the answer might be, "No." How will common rather than

individualized issues predominate after certification if each

class member's claim depends on testimony as individualized as, to

take this case as an example, whether the class member had

expressly agreed to receive a fax from the defendant before the

defendant sent it?

This case also results in the same answer to that

question that we gave in Asacol: The class certification request

must be denied on predominance grounds because the defendant has

made a seemingly credible promise to challenge the testimony that

each class member would give if required to do so at a trial on

that issue. Thus, here, as there, we reject a class certification

request on predominance grounds, despite the important role that

a class action would play in making meaningful relief possible for

the defendant's alleged wrongs.

It is safe to assume that our "predominance" holding in

this case will not go unnoticed. District Court judges in our

Circuit thoughtfully expressed the concern in the wake of Asacol

- 33 - that we had construed the predominance requirement there too

strictly. See, e.g., In re Loestrin 24 FE Antitrust Litig., 410

F. Supp. 3d 352, 403-04 (D.R.I. 2019) (Smith, C.J.); In re Intuniv

Antitrust Litig., No. 1:16-cv-12396, 2019 WL 3947262, at *7 n.8

(D. Mass. Aug. 21, 2019) (Burroughs, J.). Our reliance on Asacol

here may increase the concern that we are mistakenly construing

the predominance requirement to render Rule 23, at least in certain

important categories of cases, incapable of protecting "the rights

of groups of people who individually would be without effective

strength to bring their opponents into court at all." Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quotation marks

omitted); see also In re New Motor Vehicles Canadian Exp. Antitrust

Litig., 522 F.3d 6, 8 (1st Cir. 2008) ("[A]n erroneous failure to

certify a class where individual claims are small may deprive

plaintiffs of the only realistic mechanism to vindicate

meritorious claims.").

Nonetheless, I continue to think that our decision in

Asacol was right, and I am in full agreement with my colleagues

that it requires that we affirm the District Court's denial of the

motion to certify the class in this case. I write separately,

though, to emphasize the limits on the scope of our holding in

- 34 - Asacol and to explain how our holding in this case accords with

them.

Asacol's limits are worth highlighting because they

convince me that the concern that we are unduly cutting back on

Rule 23 through our construction of the predominance requirement

is misplaced, or, at least, premature. The current state of our

precedent does not preclude certification in cases in which the

putative class members' claims depend on an individualized means

of proof just because the defendant has vowed to challenge each

class member's showing at trial if the request for class

certification is granted. Instead, as I will explain, our

precedent in this area leaves open various viable means by which

a putative class can satisfy the predominance requirement in such

cases even if the defendant makes that promise about its litigation

strategy going forward.

I.

Before Asacol, we had decided a very similar case: In re

Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015). A review of

Nexium's own limitations -- and how Asacol responded to them -

- helps to place our precedent in this area in its proper context.

The named plaintiffs in Nexium were suing AstraZeneca,

which was the holder of several patents related to the anti-

heartburn drug Nexium, as well as several of its generic

pharmaceutical competitors. Id. at 13-14. The named plaintiffs

- 35 - alleged that the defendants had violated state antitrust laws by

entering into agreements not to compete with three generic drug

manufacturers and that, as a result, AstraZeneca had overcharged

for Nexium between 2008 and 2014. Id. The named plaintiffs also

sought certification of a class consisting of all persons or

entities who had purchased Nexium during that six-year period (with

certain limitations unnecessary to enumerate here). Id. at 14.

The defendants objected to the certification of the

proposed class on the ground that expert evidence showed that it

contained "some number of brand-loyal consumers who would [have]

continue[d] to purchase branded Nexium even when a generic bec[ame]

available." Id. at 20. The defendants argued that "the [brand-

loyalist issue] present[ed] problems that [the] plaintiffs [could

not] overcome, for [the] plaintiffs ha[d] no methodology to

identify . . . those consumers who would have switched to a generic

version." Id. (first alteration in original).

The Nexium defendants were in part mounting a

"categorical challenge" to the bid for class certification on the

ground that "the hypothetical nature of the inquiry into

[antitrust] injury . . . turned on what was necessarily

speculation about a plaintiff's . . . [individual] purchasing

preference." Asacol, 907 F.3d at 59-60 (Barron, J., concurring).

Nexium rejected that aspect of the defendants' challenge, because

an individual class member could prove the defendant's

- 36 - anticompetitive conduct caused injury under the applicable state

antitrust law through "testimony . . . that, given the choice, he

or she would have purchased the generic." Nexium, 777 F.3d at 20.

Nexium explained that "[s]uch testimony, if unrebutted,

would be sufficient to establish injury in an individual action."

Id. It further explained that, because "[t]here cannot be a more

stringent burden of proof in class actions than in individual

actions," "similar testimony in the form of an affidavit or

declaration would be sufficient in a class action" to prove the

alleged antitrust injury. Id.

The Nexium defendants did also argue that the

contemplated affidavits could not save the class certification

request because, under Rule 23's predominance requirement, "any

mechanism of [proving injury] that requires determination of the

individual circumstances of class members is improper." Id. at

21. But, Nexium rejected this ground for denying class

certification as well.

Nexium emphasized that "the Supreme Court . . . and the

circuits in other cases have made clear that the need for some

individualized determinations at the liability and damages stage

does not defeat class certification." Id. (citing Amgen Inc. v.

Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013)). Moreover,

the defendants had not asserted that they would -- let alone that

they feasibly could -- challenge the claims of antitrust injury,

- 37 - class member by class member, at trial in the event of class

certification, as the defendants had not at any point asserted

that they would challenge the class members' affidavits if

submitted. See Asacol, 907 F.3d at 52.

Thus, although Nexium affirmed certification of the

class at issue there, it did not hold that a putative class could

always fend off a defendant's predominance-based challenge just by

offering to submit affidavits previewing how the class members

would testify at trial. Nexium held only that such affidavits

could allow the putative class to defend against such a challenge

to certification if the affidavits were unrebutted.

It was against this backdrop that we then decided Asacol.

There, we once again addressed a request to certify a class made

up of individuals claiming an injury under state antitrust laws

premised on the defendants' allegedly anticompetitive efforts to

keep a cheaper generic off the market. Id. at 44-45.

The proponents of class certification in Asacol invoked

Nexium to explain why affidavits from members of the putative class

attesting to their willingness to buy the generic would solve any

predominance problem. See id. at 52. But, we concluded that

Nexium did not support the certification request. See id. at 52-

53.

We explained that the Asacol defendants had done exactly

what the defendants in Nexium had not. In addition to putting

- 38 - forth expert evidence showing that some class members were brand

loyal (though without identifying any specific individuals who

were), the Asacol defendants had "expressly stated their intention

to challenge any affidavits that might be gathered" from class

members asserting that they would have bought the generic drug had

they been given the choice to do so. Id. at 52.

We acknowledged that "'unrebutted testimony' . . . in an

affidavit could be used prior to trial to obtain summary judgment,

thereby efficiently and fairly removing the issue of injury-in-

fact from the case for trial." Id. (quoting Nexium, 777 F.3d

at 21). But, we pointed out, "[t]estimony that is genuinely

challenged, certainly on an element of a party's affirmative case,

cannot secure a favorable summary judgment ruling disposing of the

issue." Id. at 53 (emphasis added).

We thus concluded that it was dispositive of the

predominance issue that those seeking class certification in

Asacol had offered no response to the defendants' assertion that

they intended to challenge any affidavits that might be produced

by class members denying their brand loyalty. See id. at 52-54.

The class would not be able to "rely on unrebutted testimony in

affidavits to prove injury-in-fact" as the case unfolded post-

certification. id. at 53. That being so, the contemplated

affidavits could not preclude the need for mini-trials on the

merits of the disputed issue concerning injury. It therefore

- 39 - followed that the putative class could not rely on the affidavits

to surmount the defendants' predominance-based objection to class

certification, given the number of plaintiffs who seemingly would

have had to take the stand post-certification if the defendants

pressed their Seventh Amendment and due process rights to the end.

See id.

Asacol was no more categorical in denying certification

on predominance grounds, however, than Nexium had been in granting

certification in the face of a predominance challenge. Asacol did

hold that the predominance requirement could not be satisfied in

the face of a defendant's asserted intent to press its rights all

the way through trial. But, it did so in a case in which the

putative class had offered no basis for deeming that threat to be,

in effect, an empty one. See id. at 61 (Barron, J., concurring)

("[T]he plaintiffs do not argue that the defendants would be

incapable of mounting effective challenges to any, let alone to

most, of the plaintiffs' affidavits at summary judgment. Nor may

we conclude that the plaintiffs would only need to rely on

individualized proof of injury for a small identifiable subset of

the class . . . .").

In light of this important limitation on Asacol's

holding, its primary significance in my view is not to be found in

the outcome in that specific case. It is to be found in the

structure of the inquiry that it required a district court to

- 40 - undertake in every case in which it must determine whether a

putative class can satisfy the predominance requirement.

Asacol makes clear that to assess predominance a

district court must consider, in a realistic but rigorous manner,

how a trial would proceed in the event of certification. Asacol

thus requires a district court, in undertaking that assessment, to

make a prediction about what would happen post-certification if

the defendant were to follow through and challenge the claims of

the putative class members by asking whether certification would

result in, as we put it then, inefficiency (which "can be pictured

as a line of thousands of class members waiting their turn to offer

testimony and evidence on individual issues") or unfairness (which

can be "pictured as an attempt to eliminate inefficiency by

presuming to do away with the rights a party would customarily

have to raise plausible individual challenges on those issues").

Id. at 51-52.

Importantly, then, Asacol leaves open the possibility

that a district court's predictive assessment might not paint the

concerning picture of how the post-certification litigation would

unfold (even assuming no settlement) that would preclude

certification of a class on predominance grounds. Accordingly, I

understand Asacol to leave open the possibility that the

predominance requirement might be met even in a case involving a

- 41 - claim in which the members of the putative class must rely on a

means of proof that is individualized.

We come, then, to the case at hand. Here, we once again

conclude on predominance grounds that the proposed class cannot be

certified. But, in doing so, we break no ground that Asacol did

not already break.

As in Asacol, the claim of class members in this case

depends on knowledge that is specific to each one: here, whether

the class member provided advance permission to receive the kind

of fax at issue. As in Asacol, the defendant in this case has

vowed to contest each class member's claim on that highly

individualized issue, thereby suggesting that each such member

will have to provide individualized testimony -- one by one -- at

trial on it. And, as in Asacol, the proponent of class

certification here has not explained how the evidentiary realities

on the ground undermine the defendant's assertion that it can force

a trial on the disputed issue as to each class member.

Indeed, if anything, the defendant's promise to contest

the class-member testimony at trial post-certification is even

more credible here than it was in Asacol. It comes supported by

affidavits of the defendant's own from class members. Yet, the

proponent of certification, Bais Yaakov, has failed to identify a

persuasive ground for doubting the defendant's showing that a

- 42 - stream of mini-trials likely awaits on the other side of

certification.

True, Bais Yaakov contests the significance of the

undisputed evidence that thousands of schools had asked for ACT to

send them publications while supplying it with a fax number. Bais

Yaakov responds that, because the recipient's prior consent to

receiving a faxed advertisement is an affirmative defense that the

defendant bears the burden of proving, that evidence does not

suffice to show that issues of consent would have to be adjudicated

class member by class member at trial. Bais Yaakov relies for

that contention on the TCPA's requirement that the defendant show

that there was express permission given in advance applicable to

each advertisement that it faxed.

It is far from clear that requirement in the TCPA would

spare an individualized inquiry into the nature of a class member's

relationship to ACT. But, even if we assume that the TCPA makes

the bar for establishing the express-permission defense as high as

Bais Yaakov construes it to be, there remains the fact that ACT

has introduced affidavits from seventy-odd schools to bolster its

predominance case. ACT contends that those affidavits show that

those schools did expressly consent to the receipt of such faxes

- 43 - when they requested publications from ACT while supplying their

fax numbers to it.

Bais Yaakov does not attempt in response to make anything

of the fact that these affidavits concern only seventy-odd

schools -- and thus merely "a small identifiable subset of the

class's members."5 In re Asacol Antitrust Litig., 907 F.3d 42, 61

(1st Cir. 2018) (Barron, J., concurring). For example, Bais Yaakov

makes no argument that ACT "would be incapable of mounting

effective challenges" to a non-de minimis number of class members'

claims, id. (Barron, J., concurring), because speculation alone

supports the notion that ACT would be able to obtain either

additional affidavits beyond those that it has produced or any

similar evidence that could suffice to create a genuine issue of

disputed fact as to whether those class members consented to

receiving the faxes, id. at 53 ("Nor have the plaintiffs provided

any basis from which we could conclude that the number of

affidavits to which the defendants will be able to mount a genuine

challenge is so small that it will be administratively feasible to

require those challenged affiants to testify at trial."); see also

id. at 52-53 ("Nor do plaintiffs point to any basis in the record

for deeming all such challenges [by the defendants] to be so

ACT's records indicate that it sent more than 28,355 fax 5

advertisements between June 30, 2008, and June 30, 2012. Bais Yaakov of Spring Valley v. ACT, Inc., 328 F.R.D. 6, 9 (D. Mass. 2018).

- 44 - implausible as to warrant a finding that we can consider the issue

to be uncontested.").

In fact, Bais Yaakov's only argument with respect to the

affidavits from school officials is that none shows that even those

officials' own schools gave the requisite prior express

permission. But, as we explain, that contention is not tenable,

given what those affidavits indisputably show.

As a result, much like in Asacol itself, the proponent

of certification here has failed to explain how the claim of each

class member could be dealt with post-certification in a manner

that would not be "inefficient or unfair." Id. at 51. Thus,

because the proponent of class certification bears the burden of

satisfying the predominance requirement, In re Nexium Antitrust

Litig., 777 F.3d 9, 18 (1st Cir. 2015), we must reject this request

for class certification just as we rejected the one in Asacol.

For the reasons set forth above, it is clear to me that

our decision today does not extend Asacol beyond its own limits.

But, I do think it is important not to lose sight of the reasons

for those limits. Attending to them will ensure that neither

Asacol nor this case is understood to impose a greater bar to class

certification than it does.

For one thing, I understand the limited nature of

Asacol's predominance holding to reflect a recognition that even

- 45 - in an individual action involving a claim that necessarily depends

on individualized testimony, the plaintiff may be able to secure

summary judgment in her favor based on an affidavit previewing

that testimony. After all, a defendant in an individual action

cannot defeat a motion for summary judgment predicated on an

affidavit previewing the plaintiff's testimony merely by asserting

that it will contest that testimony at trial. See In re Asacol

Antitrust Litig., 907 F.3d 42, 53 (1st Cir. 2018). The defendant

must make a showing at the summary judgment stage that suffices to

put the contents of the plaintiff's affidavit in doubt. See

Triangle Trading Co. v. Robroy Indus., 200 F.3d 1, 2 (1st Cir.

1999) (explaining that "[c]onclusory allegations, improbable

inferences, and unsupported speculation" cannot give rise to a

genuine issue of disputed fact (quoting Smith v. F.W. Morse & Co.,

76 F.3d 413, 428 (1st Cir. 1996))).

For another thing, I understand the limited nature of

Asacol's predominance holding to reflect a recognition that a class

cannot be held to a higher standard in moving for summary judgment

than the standard to which its members would be held in moving for

summary judgment in individual actions of their own. See id. at

52; Nexium, 777 F.3d at 20 ("There cannot be a more stringent

burden of proof in class actions than in individual actions.");

see also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 456-57

(2016) (allowing a class to rely on representative statistical

- 46 - evidence because each member "likely would have had to introduce

[that] study" if the members "had proceeded with 3,344 individual

lawsuits"). Thus, I understand Asacol to recognize that, if an

individual class member could win at summary judgment on an issue

dependent on individual testimony and central to the claim in

her own individual action, that class member also could do so on

the strength of that same showing as a member of a class made up

of numerous individuals.

Accordingly, I understand Asacol to be in line with our

prior precedent recognizing that when a district court assessing

predominance "supportably finds that an issue which, in theory,

requires individualized factfinding is, in fact, highly unlikely

to survive typical pretrial screening (such as a motion to strike

or a motion for summary judgment), a concomitant finding that the

issue neither renders the case unmanageable nor undermines the

predominance of common issues generally will be in order." Waste

Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)

(emphasis added).6 After all, due to the lack of any need for a

6 It is worth noting that the inquiry that I contemplate a district court undertaking here is not particularly novel, even in the class action context. As to any request to certify a class, the district court must assess whether the class definition is sufficiently "definite" so as to "allow the class members to be ascertainable." Nexium, 777 F.3d at 19. In Nexium, we concluded that the proposed class "satisfie[d] th[at] standard[] by being defined in terms of purchasers of Nexium during the class period," id., even though the determination of whether any particular

- 47 - "mini-trial on the issue" in that circumstance, Amgen Inc. v. Conn.

Ret. Plans & Tr. Funds, 568 U.S. 455, 477 (2013), the concerning

picture that Asacol paints of long lines of plaintiffs waiting to

give testimony at the courthouse will fade to black.

Because of this understanding of Asacol, I do not read

it to hold that a putative class may surmount a defendant's

predominance-based challenge to certification only by showing that

class members are entitled to invoke a presumption in their favor

on the individualized aspect of their claim that the defendant

vows to dispute at trial. Asacol did recognize that in Halliburton

Co. v. Erica P. John Fund, the Supreme Court relied on the

existence of such a legal presumption in rejecting a predominance-

based challenge to certification, see Asacol, 907 F.3d at 53

(citing Halliburton, 573 U.S. 258 (2014)). And, in rejecting the

request for class certification in Asacol, we did note that the

putative class members there were not entitled to any presumption

regarding their willingness to purchase a generic under the state

antitrust laws that supplied their causes of action. Id.

But, a closer look at Halliburton's logic suggests that

the entitlement to invoke a presumption like the one that applied

individual falls within that class is an inherently individualized one that the defendants there in theory could have contested. Yet, we expressed no concern -- and no one argued -- that this feature of the inquiry on its own automatically destroyed the efficiencies that make class actions a valuable procedural device.

- 48 - there may not be a prerequisite to a putative class satisfying the

predominance requirement in the face of a defendant's assertion

that the putative class's underlying claim can be proved only

through individualized testimony from each class member. Nor does

Asacol, as I read it, indicate that it adopted a different

understanding of Halliburton on that score.

The Supreme Court in Halliburton considered a request

for certification of a class of those alleging that Halliburton

Co. had violated section 10(b) of the Securities Exchange Act of

1934 and Securities and Exchange Commission Rule 10b-5 by making

a series of material misrepresentations to try to inflate its stock

price. 573 U.S. at 264. The Court had held in a prior case, Basic

Inc. v. Levinson, 485 U.S. 224 (1988), that "requiring . . .

direct proof of reliance [in such an individual securities fraud

action] 'would place an unnecessarily unrealistic evidentiary

burden on the [investor],'" because the investor would "have to

'show a speculative state of facts, i.e., how he would have

acted . . . if the misrepresentation had not been made.'"

Halliburton, 573 U.S. at 267 (fourth alteration in original)

(quoting Basic, 485 U.S. at 245). Basic thus had held that

investors could "invok[e] a presumption that a public, material

misrepresentation will distort the price of stock traded in an

efficient market, and that anyone who purchases the stock at the

- 49 - market price may be considered to have done so in reliance on the

misrepresentation." Id. at 283-84.

The putative class in Halliburton pointed to this

presumption of reliance as a reason to reject the predominance-

based challenge to class certification that the defendants were

pressing in that case. See id. at 265-66. The notion was that

the crucial issue of class member reliance on the defendants'

alleged misinformation could be proved on a class-wide basis -

- rather than class member by class member through individualized

testimony at trial -- in consequence of the presumption of reliance

that Basic had recognized each class member was entitled to invoke.

See id. at 267-68.

In considering that contention, Halliburton did note

that there were features of the presumption that arguably favored

the defendants' position regarding predominance. For example,

"Basic [had] emphasized that the presumption of reliance was

rebuttable rather than conclusive," id. at 268, and that a

defendant could defeat that presumption by making "[a]ny showing

that severs the link between the alleged misrepresentation and

either the price received (or paid) by the plaintiff, or [the

plaintiff's] decision to trade at a fair market price," id. at 269

(first alteration in original) (quoting Basic, 485 U.S. at 248).

But, the Court ultimately held that there was no

predominance-based reason to deny class certification. The

- 50 - defendant's "opportunity to rebut the presumption of reliance" on

an "individual" basis did have, according to the Court, "the effect

of 'leav[ing] individualized questions . . . in the case.'" Id.

at 276 (first alteration in original) (quoting id. at 295 (Thomas,

J., concurring in the judgment)). Nevertheless, the Court

explained, that was "no reason to think that these questions

w[ould] overwhelm common ones." Id. For, while the Court

acknowledged that a defendant might be able to show that an

individual class member "would have bought or sold the stock even

had he been aware that the stock's price was tainted by fraud,"

id. at 269, it determined that the prospect "[t]hat the defendant

might attempt to pick off the occasional class member here or there

through individualized rebuttal does not cause individual

questions to predominate." Id. at 276.

Halliburton in this respect may be understood to have

determined that it would be -- to use our own way of putting the

point -- "highly unlikely" that a defendant would have much luck

puncturing an otherwise unrebutted case for finding investor

reliance in such a securities fraud case. See Waste Mgmt.

Holdings, Inc., 208 F.3d 288, 298 (1st Cir. 2000). But, if so,

then there is no reason why, in principle, a court could not make

a similar assessment based on the prospect of affidavits previewing

- 51 - class member testimony in certain types of case in which no such

presumption applies.

Of course, the defendant in a case of that kind would

still have the "opportunity," Halliburton, 573 U.S. at 276, to

make a responsive showing that would suffice to establish at the

certification stage that after certification were granted it would

be able to create a genuine dispute of material fact as to the

putative class members' claims, despite the affidavits previewing

their testimony on the critical issue. But, the defendants in

Halliburton had a similar opportunity in that case to cast doubt

on the putative class members' claims -- supported by the

presumption recognized in Basic -- to have relied on misleading

investment information. And yet the Court did not think that bare

possibility a reason to conclude that individualized issues would

predominate, as it implicitly predicted that it would be difficult

for a defendant to produce evidence that could cast doubt on the

reliance of more than "the occasional class member here or there."

Id.

Of course, even when the putative class points to the

affidavits from class members that it could use to secure summary

judgment on the disputed issue, the defendant may well find it

quite easy at the certification stage to demonstrate that there is

a predominance problem nonetheless. A defendant might have

business records that suffice to permit it to do just that. Or,

- 52 - it might even have affidavits from putative class members -- as

ACT has here -- that are representative of more than a de minimis

chunk of the class and that thus would suffice to put a substantial

number of the class members' own affidavits in doubt.

In other cases, though, a defendant might turn out to

have a difficult time identifying evidence of that kind at the

certification stage. Halliburton itself is, of course, an example

of a case in which, by virtue of a strong presumption, that was

so. But, even in a case involving a claim akin to the ones in

Nexium or Asacol, for which no similar presumption applies, it may

not be easy for the defendant to demonstrate that there is a

predominance problem.

A plaintiff's representation about how it would have

acted if the world had been different than it was (such as a

consumer's testimony about whether she would have purchased a

generic drug cheaper than the brand-named one that she had

previously used) is, by its nature, not easily undermined. It is

thus not clear to me how a defendant could show that it would be

able to genuinely challenge such a representation post-

certification if faced with the prospect of affidavits from class

members attesting to something so peculiarly within their own

knowledge.

True, a defendant in a case similar to Asacol could

respond to the prospect of affidavits disclaiming brand loyalty by

- 53 - pointing to class members' health plan purchasing records. But

such documents might merely highlight that a class defined by

price-sensitive health plans -- indicating a lack of brand loyalty

-- would still be a viable one. See Asacol, 907 F.3d at 61 (Barron,

J., concurring).

I also do not understand our precedent to this point to

establish that a defendant's invocation of expert statistical

evidence about the presence of uninjured class members materially

changes the analysis that a district court must undertake. In

Asacol, the district court did find based on expert testimony that

approximately ten percent of the putative class was brand loyal

and thus uninjured, 907 F.3d at 46-47, and we then held that this

evidence indicated that the inherently individualized issue of

brand loyalty presented a predominance concern, given the "needle

in a haystack" problem, id. at 61 (Barron, J. concurring). But,

we did not go on to suggest that such statistical evidence sufficed

on its own to establish that the individual class members would

not have been able to obtain summary judgment as to the issue of

brand loyalty had they introduced affidavits attesting that they

would have been willing to buy the cheaper generic if it had been

available. Such statistical evidence would neither have

established that any single class member was personally brand loyal

nor even provided a basis for finding by a preponderance that any

one of them was. See Nexium, 777 F.3d at 20; see also Tyson Foods,

- 54 - Inc. v. Bouaphakeo, 577 U.S. 442, 458 (2016) (explaining that the

introduction of representative evidence in Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338 (2011), "would have violated the Rules

Enabling Act by giving plaintiffs and defendants different rights

in a class proceeding than they could have asserted in an

individual action"); cf. Charles Nesson, The Evidence or the Event?

On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L.

Rev. 1357, 1378-80 (1985) (explaining the "blue bus hypothetical,"

in which a plaintiff loses in his suit against the Blue Bus Company

before reaching the jury because a "factfinder c[ould] only

conclude from the plaintiff's evidence that there was an 80% chance

that he was injured by the Blue Bus Company and a 20% chance that

he was not").

I do not seek here to define with any precision the

showing at the certification stage that a defendant must make in

the face of an assertion by the proponent of certification that

common questions will predominate. I also do not seek here to

define precisely the showing that the certification proponent must

make to rebut the defendant's contention that common issues will

not. Nor, finally, do I mean to catalog the specific types of

- 55 - cases that are more or less susceptible to being challenged on

predominance grounds.

The reviewing court's task when it comes to the

predominance requirement is to make a reasoned judgment about how

the litigation would proceed in the event of certification. It

must make that judgment by predicting how many individual mini-

trials would be required if the class were certified, which in

turn entails a forecast about whether it is "highly unlikely" that

the defendant will be able to stave off a post-certification motion

for summary judgment. Waste Mgmt. Holdings, Inc., 208 F.3d 288,

298 (1st Cir. 2000). The showing required of both the putative

class and the defendant at the certification stage as to

predominance thus will necessarily vary from case to case, in line

with the nature of the underlying claim and the type of issue that

it requires class members to prove through individualized

showings. The summary judgment standard is such that I do not

hazard more categorical observations.

Still, the showings must have enough substance to them

to permit the court to engage meaningfully in the required

predictive exercise. And, in determining how much substance is

enough, it is important to keep in mind both that the district

court's judgment on that score is entitled to deference, see In re

Asacol Antitrust Litig., 907 F.3d 42, 51 (1st Cir. 2018) (reviewing

the certification decision for abuse of discretion), and that a

- 56 - certifying court will have an opportunity to revise that

determination if in reality proceeding as a class proves

unworkable, Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160

(1982) ("Even after a certification order is entered, the judge

remains free to modify it in the light of subsequent developments

in the litigation.").

It is also important to keep in mind that we have never

indicated that, in a case where affidavits from class members are

required to show that they can prove their claim, it would be an

abuse of discretion for a district court to certify a class unless

the putative class has already in fact collected and introduced

those affidavits into the record. See In re Nexium Antitrust

Litig., 777 F.3d 9, 20-21, 24 (1st Cir. 2015). Nor is there

anything in our case law to indicate that a defendant must actually

collect and introduce at the certification stage all of the

evidence on which it would rely in the merits phase, including the

evidence it would introduce in order to oppose summary judgment.

Indeed, I would be concerned that requirements to that effect would

conflict with the principles that undergird Rule 23(b)(3), and

upset the careful balance that the (b)(3) class action procedure

strikes between efficiency of litigation and fidelity to a

defendant's due process and Seventh Amendment rights. See Asacol,

907 F.3d at 51-52; see also Fed. R. Civ. P. 23 advisory committee's

note to 1966 amendment ("Subdivision (b)(3) encompasses those

- 57 - cases in which a class action would achieve economies of time,

effort, and expense, and promote uniformity of decision as to

persons similarly situated, without sacrificing procedural

fairness or bringing about other undesirable results.").

That said, a review of the state of our precedent in

this area reveals to me that there is still much to be decided

when it comes to the predominance requirement, notwithstanding our

important holdings to date establishing the applicable framework

that must be used to decide future cases implicating it. For that

reason, while I join the majority in full in affirming the District

Court's denial of certification for this class, just as I joined

the majority in Asacol itself, I think it important to emphasize

here, as I thought it important to emphasize there, the limited

nature of our holding in this case. For, I am confident that, as

a consequence of this decision, our current precedent in this area

continues to ensure that viable opportunities remain for securing

class certification in cases involving claims that inherently

depend on highly individualized means of proof, no matter how

intently a defendant may represent at the certification stage that

it wishes to contest those means at any trial that might ensue.

- 58 -