A federal district court just used the phrase “wink wink” in a TCPA class action certification ruling with $100MM at stake. And somehow that isn’t even the weirdest part of the ruling. Read on to learn what happened.

Some company sent some faxes back in 2011. (2011 people. Back then I wasn’t even the only one using a blackberry.) The Plaintiff claimed the faxes were sent without consent. There were over 200,000 faxes sent — which, using the TCPA’s statutory damages, means that Defendant is staring at over $100,000,000.00 in minimum statutory damages.


Of course, the case can never be certified since Plaintiff would have to prove that the faxes were sent without consent across the entire class using common evidence, which it could never do.

Just kidding.

Instead, the Court impermissibly put the burden of proving consent on the Defendant. When the Defendant seemingly met that burden — albeit meekly — the Court summarily disregarded it and certified the case anyway. Why? In Vandenberg & Sons Furniture, Inc. v. Alliance Funding Grp., Case No. 1:15-CV-12552021 U.S. Dist. LEXIS 11970 (W.D. Mich.  January 22, 2021), the Court found that the Defendant had not explained where the fax numbers at issue had come from or convincingly demonstrated the existence of a written policy. (Importantly, it should have been Plaintiff’s burden to prove that the numbers all came from the same source — not the Defendant’s burden of proving multi-source — but we can discuss that outside the context of this article.)

Here’s the meat of the analysis:

Based on the lack of records, this Court, like the magistrate judge, has difficulty accepting as fact that Alliance had a policy of obtaining consent before sending any fax. Alliance did not send just a few faxes. It paid WestFax over $13,000 to send 465,758 pages. How did Alliance obtain the fax numbers? Where is the company’s written policy? Where are the sales representatives testifying as to following any policy? At the hearing, the Court expressed concern as to why Vandenberg did not depose any sales representative. Vandenberg responded that Alliance did not disclose any such witness. The record contains no evidence as to the number of sales representatives employed by Alliance. Because Alliance has not disclosed any sales representative other than the Vice President of Sales and Sales Manager as a possible witness in discovery, it is unlikely that any sales representative will be permitted to testify for Alliance at trial.

And here’s the “wink wink” part:

Allowing Alliance to defeat class certification based solely on the testimony of two management employees regarding an unwritten policy would create a roadmap for future companies to defeat class certification. In other words, “Send the fax but be sure to destroy all evidence of to whom you sent it.” Or, Alliance may have had such a policy—wink, wink—fully expecting or even encouraging its employees to ignore the policy. This is not to say that Alliance did not have this unwritten policy. But, as of now, the Court finds that whether such a policy existed can be decided at the class level.

(Emphasis added.)

Yep. “Wink wink.”

The Court essentially refuses to credit the Defendant’s evidence at the class certification stage and suggests it could just be making up the fact that they had a policy to seek consent to call the numbers. And while the Court chastises Defendant for failing to come forth with evidence of consent it was actually the Plaintiff that owed the burden to prove an absence of consent can be demonstrated using common evidence. (Don’t let the substantive burden on the issue of consent confuse you—the issue is whether consent can be proven on a classwide basis.)

Now, in fairness, the Court is correct that whether a policy exists to obtain consent can be proven on a classwide basis—but whether the policy was violated with respect to specific faxes cannot be and that is the point. By failing to credit the existence of a policy to begin with, however, the Court has essentially created an assumption of guilt that enabled certification of a case that should not have been certifiable.

And all of this over faxes from 2011. And with $100MM on the line.


Takeaways here:

  1. Unlike love, TCPA violations are forever (J/K—love is forever too);
  2. Have a written TCPA policy. No seriously, have one.
  3. Don’t send faxes.
  4. Don’t send 100s of thousands of faxes.
  5. Have a written TCPA policy.
  6. Always assume that the court will (improperly but commonly) impose a burden on a TCPA defendant to prove consent, even though it really shouldn’t do that;
  7. Do not assume that a court will credit perfectly admissible and uncontradicted evidence about an unwritten TCPA policy;
  8. Have a written TCPA policy.
  9. $100MM is a lot of money.
  10. 2011 was a long time ago.
  11. Have a written TCPA policy.

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