one five dash one five seven two bridging communities ank at all versus top flight financial inc or argument fifteen minutes per side mr oppenheim for the may please the court this is an appeal of a denial of class certification in a case in two thousand and thirteen when the district court issued its opinion it concluded by saying the sixth circuit has not weighed in on the availability of class certification in t c p a claims under the circumstances of this case the following year in two thousand and fourteen this court decided a case called american copper and brass incorporated versus lake city  as we discussed in the brief that case was precisely the circumstances of this case it involved the same facts broadcaster who solicited a business in the business engage their services in order to market their services and the broadcaster chose the list of recipients nobody asked the recipients whether they wanted to receive these facsimiles the facsimiles went out ultimately the same records were and analyzed by the same expert to determine who got them in two thousand and fourteen this court affirmed certification as well as summary judgment in the lake city case  rejecting various arguments similar to the ones that the defendant makes here is being wholly speculative in its briefing the defendant does not point to any evidence in the record whatsoever beyond rank speculation that anyone consented to receive these faxes which was the basis on which the district court denied certification rather it tries to draw distinction by pointing to its argument its contention that the individual who ordered the faxing here was wearing his hat is an independent contractor of the defendant's owner's other company even though he bought faxes promoting the defendant services and that would soon be an issue come into all of the case that's correct your honor either all of the faxes were sent on behalf of the defendant or none of the more but either way that shouldn't be an obstacle to certification ultimately as i'm sure this court is aware just two months ago it issued a decision in a case called citing vs alco vending where it set forth a number of standards in guideposts for district courts to use when evaluating a claim such as this the faxes weren't sent on behalf of a particular defendant and i would imagine that on remain and the district court is going to have to wrestle with that but ultimately that's not why the district court denied certification and that's frankly as your honor just pointed out no reason to deny certification ultimately it comes down to the contention somehow that may be well the defendant didn't get consent from anybody and business to business solutions didn't get consent from anybody maybe the list broker firm who who assembled the list of targets th business to business solutions bought way back when and might have gotten universal consent from everybody which is a novel argument and one would assume it would have precluded class certification in american copper versus lake city as well as the other fifteen business to business the c p a cases we cited in our briefing but even if you someone could produce a scintilla of evidence that that actually happened which no one has that would seem to be a common issue as well because that would have been a business practice of the list broker i believe you understand defendant to be arguing consented to or do you understand them to be raising the possibility of an established business relationship well that's an interesting question your honor and going through both the opinion in the briefing it's one that's not entirely clear to me  i certainly know that the district court casts things in terms of actual consent ultimately though if worse especially if we're starting to get into established business relationship which i think is the term that hasn't appeared either in the opinion or the briefing then all of a sudden you get into another issue which is what about the opt out notice that are on these faxes because you don't get the benefit of an established business relationship defense unless you have an opt out notice that complies with the statute in the regulations and in fact it's interesting that this court vacated a class certification denial i think a couple  years ago in a case called in race and ski well the center simply because the district court didn't analyze the opt out notice i know that inter the the seventh circuit said that opt out notice requirement would apply to consent to which is the point i was going to get to but it certainly applies it's right in the statute as applying to an established business relationship defense and frankly that may be why the district court didn't go there just curious why if this case was decided by the district court in two thousand and thirteen why is it taking three years to get up here i think well first of all we sought an interlocutory appeal of the class certification denial and that was ultimately denied and then the case moves forward on the individual claims and i think that there was discovery i don't recall if there was another run around of summary judgment but ultimately we got to a posture where i think we were just short of trial and then there was this offer of judgment that the judge took to move the claim i do know there was also of this delay recalling that initially the case was handled by district judge sackhoff who passed away and i think there was some delay reassigning the case what about this offer of judgment i gather that the two individual were offered the max they could recover and they were then the judge said that makes the case moot yes and obviously the thrust of our appeal is the class certification was improvidently denied had it been granted then obviously the offers were nowhere near what the class would be entitled to but i think ultimately that what happened was exactly what the supreme court just said shouldn't happen in wall versus gomez which is that there was an unsatisfied unaccepted offer of judgment that nonetheless was held to move to claim so i think that at the very least even if the class certification denial wasn't an error certainly the rule sixty eight dismissed dismissal was  known from pretty much the get go at least since mr bigger staff did his report exactly who was in the class and we asked defendant say ok do you have a relationship with any of these people do have a relationship did you get consent from anybody to send faxes and they provided no nothing in the affirmative on either question we went and got a declaration from the  fax broadcaster business to business solutions that's ms abraham who's declaration was discussed in the district court opinion who basically said hey it's my company practice we buy lists f and use those to satisfy our clients requests i never talk to any of these people i don't ask them for consent and that is the whole of the record i think that defendant may have said oh well there somebody else might have some information but they certainly had every opportunity to come forward and say aha jack's widgets incorporated line item number five hundred seventy one we talked to them on april thirtieth of two thousand and fourteen we got consent from them there's nothing like that in this case in unless there are any further questions here the solution to that in the denial of  certain entities were carved out through exclusion from a class and i don't know whether it would be appropriate and i guess it would depend on the numbers to have a subclass and argue that even if they gave consent the opt out notice is deficient so they still have a claim but i admit that that would be a different claim but we never got there because there are such people here thank you ron i think  pairing on behalf of the defendants just to answer your sort of procedural question as to the length of time i suspect there is a great deal to do with judge cohn is now that he's ninety two is moving a little slower than he did you know in his eighty's so while he's still rather remarkable he's just taking a lot longer to decide things and i think that is largely the reason why it's taken a long time to get  here just one point i just i think we're in agreement with with the plaintiffs if this case were reversed is the class certification went back down liability would be determined under the siding and insulation case that you arthur judge gilman a few months ago they had argued in their brief that it would be controlled by the imhoff case but the faxes in question here are worst sent out in march of two thousand and six which is before the august first da when the f c c regulations that were issue in imhoff took effect the standard of liability if that's ever determined on the merits would be determined under siding insulation not under the under imhoff how do you distinguish the american copper case and the american copper case dealt with an issue on a couple issues on class service which weren't considered here american cop or was primarily a case that dealt with standing under the c p a and it talked about whether or not plaintiffs and class members were objective early ascertainable as a general matter and then it also talked about the application of michigan court rule three point five zero one a five none of those issues are present in this case we're talking about the question of whether or not consent is individualized question or whether that's a common class question and on this record this is an individualized question the pla are i do not i ask any of the people to whom us in the eye just in the mail and the records the question to you in discovery was who do you have that would qualify as that would give us information that do work people who consented and you provided nothing i don't understand how the record supports your argument there is no evidence as to what info usa did in plaintiff still has the burden of proof on that issue that this would be a common question and not an individualized question or does as to whether argue much on the fifth circuit case of i think it's jean and jane l l  and isn't that in actually what you have here it's a class wide question got them all from info usa used only info usa information a carol whatever her last one was did not do anything further to check for consent so you've got one singular group provided by info usa all of whom are subject to the sign question of of consent so you have  common question no there's four thousand two hundred fifty questions as to whether or not each and every one consented to and fro usa and none of them have been shown not to have done so and there's no evidence in this record that that's that that's a common that that's a common question as opposed to an individualized question and gene in gene did find that on the on the record in that case just like in the record in this case th individualized question so i'm struggling with the language in gene versus gene when it talks about the common question in this type of case is whether the clue sion of the recipient's fax numbers in the purchased database indicated their consent to receive fax advertisement all you have to have is a predominant common question so that the question here you have one group from a single so the question becomes common to all of those people in that group as to whether they gave consent the question is whether each and every whether it did individual member gave consent which is four thousand two hundred fifty questions not one common question that it's more likely right that the question is going to be does this list purveyors seek consent well that is a question and perhaps there is in fact a common defense that would exist or perhaps there's no records at all that show this answer to this question either way but what we're looking at right now is whether on the record that was presented and the evidence that was presented by this point of to judge zapped off is there evidence that that's a common question they don't present any evidence on that issue but the  ok the plaintiffs contend that they didn't that they didn't grant consent that these were to use the statutory phrase these were unsolicited right that is a contention they're making yes ok and the only as far as we know the only entity that might have sought their consent is the purveyor of the list because the defendants they have all sorts of defenses but having sought and obtained consent not one of them correctly right we have not this was done without the knowledge of this particular defendant it did not see consent before these factors were set right ok and then we have a company that selling a list of a whole list yes and the question is going to be not whether they sought the consent of the number four to seventy six number six twenty nine number three thousand this is going to be whether this company seeks consent before they add people to the list that is a question they exist but at the end of the day it is a question of whether or not each and every one of these or each individual plaintiffs actually gave consent that is one of the questions that exists here that's true but when you look at what's going to be litigated and what the common issues are it is much more likely almost to a certainty that the issue that's going to be litigated is what this company does as a practice as opposed to whether they sought everybody's consent and actually received it from each individual person and see if if it were the latter question then i can see how those would be individual if the practices that you seek that they seek the consent and work and you've got to figure out which people actually gave it then the focus is on all these individual trials but it seems pretty clear that the real question is going to be how do they assemble these lists that is a question that would exist but there's like three players three possibilities here one you know the information from in for usa may or may not answer that question it may not answer that question because they may not have records back in two thousand and five or the time period when this list would have been solved  if that's the case we will be looking at each individual and city to find out whether or not they consented would be looking at each individual entity if under the terms of the fifth circuit case the the lack of consent and here there is a class wide manes you go to info usa and you say to your persuaders include the acquisition of consent to receive faxes yes or not i think you're speculating as to what would happen from here because we don't we don't know what the practice is from this record and second i don't know why we wouldn't look into things further depending on part of what info usa said well you had the opportunity and discovery to provide any of that information in response to questions regarding whether through a class wide basis you have a man of determining a question that is common to all of the individual if not the last of the wires in an absence of evidence in the record then that's the problem of the party that has the burden of proof and what judge zack off found on this record was that this plaintiff had not met its burden of proof of showing that it is a common class wide question and bases the arden on the consent issue i mean is the concern that these blind his skin is not an affirmative defense of yours that these plaintiffs all consented and therefore is not a violation of the act no i think it's when you look at the issue of class certification the party seeking class certification has the burden of proof of showing that the issues are subject to common resolution they have not shown on this record with any evidence and they had plenty of time to conduct discovery too and they didn't take depositions and they didn't do a lot of things during discovery and they didn't meet their no showing that this would be resolved on a class wide basis and as a that i think that there is some confusion in your argument between the ultimate merits determination and the preliminary question at class certification of whether there is a mains common to all the members by which you can determine whether there was a lack of consent you don't have to know whether it was given or not in order to certify what you have to know is whether there's a common manes of making that determination here the allegation is there is a common means of making that determination because that means is by determining thr particular member knew or didn't know that might be a defense you my raised that theory is an ongoing business really an established business relationship as an affirmative defense but at this stage of class certification i'm not understanding your argument because it seems to me to be very merit based the argument is simply that there is no evidence showing that this would be a burden of proof the burden of proof is to show that there is a common question that predominated and here the common question that predominate is whether or not the purview of info us in gauge and the a bill the action to determine whether there was consent whether they did or not doesn't matter it's whether june this is the fifth circuit that's the first circuit case which is the only circuit court case considering the issue of whether or not consent is an individualized or generalized question i mean there's a couple other issues here that we have  dealing with you know whether or not these alleged entities still exist whether or not there's some successor that exists for them we've presented evidence in the record showing the tremendous problems with the bigger staff affidavit and why will be doing a great number of individual eyes determinations as to whether class members have standing to pursue claims and that makes this case based upon the record that we presented unique and different from the host of other cases that have existed i'm not aware of any other case that is presented evidence showing the problems in the individualized questions as to standing that would exist that exist here would you how do you respond to the argument that yes but there's another common question that is an overarching question that weighs heavily in the other direction which is whether this gentleman had authority to ask for the specs lives for your client now the idea that in four thousand separate cases is a little strange i would agree that that is a common issue as to whether or not he whether or not these circumstances would make us a sender under the that was trying to do a before class certification this we did this after class certification was denied and then in the lower court there were just the two plaintiffs that were remaining and to try to get the case resolved did the offer of judgement for more than these two plaintiffs could possibly recover but we weren't doing that which i think is a lot of gamesmanship people have done to try to mood an entire class then it's an entirely different situation generally but there's one difference here i think there may be an open question not as to whether or not sending out this offer of judgement somehow moves the class but whether or not these two particular plaintiffs could be class representatives and i don't think that that would be an issue if you reverse that would have to be resolved first in the district court and then perhaps in another it might get as the supreme court at some point in time but that's but that's a different question i mean they can still proceed with the class there might be an argument we can make that these individual plaintiffs c longer be class representatives because they rejected a settlement i think i think i think that because we made the offer judgment for more than they would have been able to recover w situation i've been aware of where someone has actually agreed to say all four thousand two hundred fifty of you hears all your damages and i don't think that's something that we would be contemplating doing that would be that would be right understand i mean we have a situation where this particular offer was done when there wasn't a plan certification pending so there may there they may have been resolved as to these two but there's still four hundred forty two hundred fifty potential class representatives out there thank you very much you're welcome thank you tillman's first question to my colleague was a good one how is this case different from lake city and i was listening for an answer and we didn't really get one and the reason is it's not  and while the answer we did get was well they didn't exactly talk about this speculative consent issue in lake city but one of the arguments that was made in lake city was well you can't trust the records because well maybe some of these transmission records are wrong and i thought it was relevant that what this court said in lake city in addressing that argument is this argument is wholly speculative and that's really all the defendants offering here they're offering speculation that maybe out there somebody might have offered consent and then trying to wrap it up in what i think is a and a dangerous one of conceptions of burdens of proof and i think that i want to touch on that briefly i think judge gilman also raised the question on well wait a minute is consent really plaintiff's burden of proof in the case law that i'm aware of is that it isn't once you get to the merits issue that it's an affirmative defense judge gillman posited so ultimately it's going to be the burden burden to produce something if they want to get out of it but is your honour's pointed out it's the word just the class certification and it's going to be a common question so you don't think that an unsolicited that is part of the plaintiff's case it absolutely is and but i'm saying that to the extent that the defendant wants to proffer a defense to that case it's got to come forward with something more than saying well you haven't talked to every single person in that could conceivably have ever talked to this recipient and maybe the recipient told one of the people that they met through out there forty six years on this planet that they wanted to get facts advertisements that's not a defense and that's really the defense the defense trying to offer here and i guess the last point i wanted to make and we made this in our reply brief is  defended hasn't addressed it is that even if that's their defense that this in vote usa and to tea got blanket consent from the people that put on its list years and years ago there is still an obligation by the people who are sending in the here and now to confirm that consent and that's what the f c c is said and there is the record is clear that neither defendant nor view to be did that here thank you thank you thank you both will be submitted