The Seventh Circuit recently shed light on what defendants need not do when invoking an affirmative defense that the defendant contends undermines predominance:  establish that the affirmative defense would, on the merits, defeat at least some class claims.

The facts before court in Gorss Motels, Inc. v. Brigadoon Fitness, — F.4th —, 2022 WL 872639 (7th Cir. Mar. 24, 2022), had the makings of a classic Telephone Consumer Protection Act case.  The plaintiff sought certification of a class that received allegedly “unsolicited” faxes from the defendant.  The defendant opposed certification by relying on the affirmative defense of consent, arguing that the need to determine each class member’s consent vel non would mean that common issues for the class would not “predominate over any questions affecting only individual members.”  Fed. R. Civ. P. 23(b)(3).

The plaintiff, armed with recent district court decisions, argued that the defendant’s consent defense could not undermine Rule 23(b)(3) predominance — absent a showing by the defendant that a significant percentage of the putative class claims were, in fact, subject to the defense.

The Seventh Circuit disagreed, ruling that the plaintiff was conflating what other decisions had determined was sufficient to defeat predominance with what was necessary. 

One route to defeating predominance, the court explained, is to demonstrate that a significant number of class members consented to receive the defendant’s faxes (and that it would be difficult to sort out who did and who did not). 

But another, equally viable route to defeating predominance is to establish that the consent inquiry would require a court to assess whether an array of different factual circumstances add up to “consent” in the first place.  For example, in Gorss Motels, the defendant successfully pointed to the varying mechanisms by which it had obtained the putative class’s fax information — via franchise agreements, national purchasing networks, lists of prior customers, and oral permissions, to name just a few — which the court would have to untangle to determine whether any given class member consented via one of these mechanisms to receive the defendant’s faxes.  Requiring a defendant using this second route to defeat predominance to also show that its affirmative defense would ultimately succeed on the merits against some class members would, the Seventh Circuit explained, ignore that “it is the method of determining the answer and not the answer itself that drives the predominance consideration.” 

The court’s decision is available here.