Bais Yaakov v. Educational Testing Service

Opinion

21-399-cv (L)

Bais Yaakov v. Educational Testing Service

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 31st day of October, two thousand twenty-two. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 SUSAN L. CARNEY, 7 SARAH A. L. MERRIAM, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 BAIS YAAKOV OF SPRING VALLEY, on behalf 11 of itself and all others similarly situated, 12 13 Plaintiff-Appellant-Cross-Appellee, 14 15 v. No. 21-399-cv 16 No. 21-541-cv 17 EDUCATIONAL TESTING SERVICE, 18 19 Defendant-Appellee-Cross-Appellant. *

* The Clerk of Court is directed to amend the caption as set forth above.

1 ------------------------------------------------------------------ 2 FOR PLAINTIFF-APPELLANT- 3 CROSS-APPELLEE: AYTAN Y. BELLIN, Bellin & 4 Associates LLC, White Plains, 5 NY 6 7 FOR DEFENDANT-APPELLEE- 8 CROSS-APPELLANT: JEFFREY R. JOHNSON, Jones 9 Day, Washington, DC (Sharyl 10 A. Reisman, Jones Day, New 11 York, NY, on the brief) 12 13 Appeal from a judgment of the United States District Court for the

14 Southern District of New York (Kenneth M. Karas, Judge). 15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 16 AND DECREED that the judgment of the District Court is AFFIRMED. 17 Bais Yaakov of Spring Valley appeals from a judgment of the United States 18 District Court for the Southern District of New York (Karas, J.) entering a 19 judgment of $12,000 plus costs for Bais Yaakov, denying its request for injunctive 20 relief, and dismissing the case as moot pursuant to Federal Rule of Civil 21 Procedure 12(b)(1). We assume the parties’ familiarity with the underlying facts 22 and the record of prior proceedings, to which we refer only as necessary to 23 explain our decision to affirm. 24 Bais Yaakov brings this class action suit alleging that Educational Testing

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1 Service (“ETS”) sent solicited and unsolicited fax advertisements to Bais Yaakov 2 and thousands of other recipients without the legally required opt-out notices, in 3 violation of the Telephone Consumer Protection Act (“TCPA”). The TCPA 4 generally makes it unlawful to “use any telephone facsimile machine, computer, 5 or other device to send, to a telephone facsimile machine, an unsolicited 6 advertisement.” 47 U.S.C. § 227(b)(1)(C). The District Court denied Bais 7 Yaakov’s motions to certify several classes of recipients because (1) the D.C. 8 Circuit in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) 9 (Kavanaugh, J.), invalidated regulations that had extended the TCPA’s opt-out 10 requirements to solicited fax advertisements; and (2) “the nature of the business 11 relationships” between ETS and the recipients raised “individualized concerns 12 on questions regarding whether consent was obtained over the course of those 13 relationships,” Special App’x 179. 14 ETS then sought an order entering judgment of $12,000 plus costs for Bais 15 Yaakov against ETS and dismissing Bais Yaakov’s request for injunctive relief as 16 moot or meritless. As we explain further below, the proposed amount of 17 damages plus costs exceeded the maximum monetary damages Bais Yaakov 18 could recover on its individual TCPA claims. The District Court, over Bais

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1 Yaakov’s objection, entered judgment of $12,000 plus costs for Bais Yaakov, 2 concluded that Bais Yaakov’s request for injunctive relief was meritless, and 3 dismissed the case as moot after entering judgment on all of Bais Yaakov’s 4 claims. We review a denial of class certification for abuse of discretion. See 5 Sergeants Benevolent Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 6 806 F.3d 71, 86 (2d Cir. 2015). Bais Yaakov contends that the District Court erred 7 in denying class certification because this Court is not bound by Bais Yaakov v. 8 FCC, an out-of-circuit decision, and because individual issues regarding recipient 9 consent do not defeat class predominance under Federal Rule of Civil Procedure 10 23(b). The first argument is foreclosed by our decision in Gorss Motels, Inc. v. 11 FCC, which held that Bais Yaakov v. FCC is “binding in effect on every circuit.” 12 20 F.4th 87, 92 (2d Cir. 2021). 13 Bais Yaakov’s second argument fares no better. “Congress drew a line in 14 the text of the [TCPA] between unsolicited fax advertisements and solicited fax 15 advertisements.” Bais Yaakov v. FCC, 852 F.3d at 1082. Drawing the line 16 between solicited faxes and unsolicited faxes in this case would require 17 individualized factfinding. Indeed, as the District Court explained, “there’s 18 documentation indicating that over 1,000 of the . . . recipients were themselves []

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1 customers, suggesting that many, if not all of them, may have also provided 2 express consent to receive fax advertisements about the product”; documentation 3 that hundreds of recipients “were, in fact, participants in a [pilot program], and 4 some of these customers had . . . agreed to continue to receive information about 5 the product via fax”; and documentation that individual teachers or 6 administrators at some schools “would reach out to request product information, 7 even if the entity itself had not formally requested it.” Special App’x 179–80. 8 The District Court did not abuse its discretion in determining that “the questions 9 of law or fact common to class members” did not “predominate over [] questions 10 affecting only individual members.” Fed. R. Civ. P. 23(b)(3); see also Bais 11 Yaakov of Spring Valley v. ACT, Inc., 12 F.4th 81, 90–93 (1st Cir. 2021) (“[W]e see 12 no abuse of discretion in the district court’s finding that there were, among the 13 thousands of yet-to-be-canvassed putative class members, schools that could be 14 found by the factfinder to have given the requisite permission,” that “could only 15 be identified were one to parse through the circumstances of each school in the 16 putative class.”). 17 Next, Bais Yaakov argues that the District Court improperly dismissed its 18 individual claims. As to the damages claim, ETS offered to deposit with the

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1 Court more than the maximum amount Bais Yaakov could recover on its TCPA 2 claim. Bais Yaakov does not dispute that the $12,000 judgment that the District 3 Court entered fully satisfies its damages claim. Because ETS “surrender[ed] to 4 complete relief in satisfaction of [] plaintiff’s claims, the district court may enter 5 default judgment against [ETS]—even without the plaintiff’s agreement 6 thereto—and then, after judgment is entered, the plaintiff’s individual claims will 7 become moot for purposes of Article III.” Radha Geismann, M.D., P.C. v. 8 ZocDoc, Inc., 909 F.3d 534, 542 (2d Cir. 2018) (quotation marks omitted) (cleaned 9 up). 10 As to the injunctive relief claim, ETS has taken steps to ensure that no 11 additional unsolicited fax is sent to Bais Yaakov. These steps include removing 12 Bais Yaakov’s fax number from its database and noting in the relevant files that 13 the fax number should not be used in the future. As a result, “the allegedly 14 wrongful behavior could not reasonably be expected to recur.” Friends of the 15 Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); see also 16 Bais Yaakov v. ACT, 12 F.4th at 95 (“We find no error in the district court’s 17 finding that ACT’s cessation of sending faxes to Bais Yaakov since 2012, its 18 deletion of Bais Yaakov’s fax number from ACT’s database, and its admission

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1 that any further faxing to [Bais Yaakov] would render ACT liable, all combine to 2 establish that ACT’s allegedly wrongful behavior as to Bais Yaakov could not 3 reasonably be expected to recur.” (quotation marks omitted)). 4 Having affirmed the District Court’s judgment on all of Bais Yaakov’s class 5 and individual claims, we agree that his case is moot. 1 See Tanasi v. New All. 6 Bank, 786 F.3d 195, 200 (2d Cir. 2015). 7 We have considered Bais Yaakov’s remaining arguments and conclude 8 that they are without merit. For the foregoing reasons, the judgment of the 9 District Court is AFFIRMED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk of Court

1 ETS also filed a cross-appeal. “When a cross-appeal is conditional, asking that it be reached only if and when the appellate court decides to reverse or modify the main judgment, and the direct appeal fails and the judgment is affirmed, the usual procedure is to dismiss the cross-appeal as moot.” Weiss v. Natl. Westminster Bank, PLC., 993 F.3d 144, 159 (2d Cir. 2021) (quotation marks omitted). We therefore dismiss ETS’s cross-appeal as moot.