IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30195

GENE AND GENE LLC, Individually and as representatives of the Class

Plaintiff - Appellee

v.

BIOPAY LLC; ESSEX INSURANCE COMPANY; EVANSTON INSURANCE

COMPANY

Defendants - Appellants

Appeals from the United States District Court 

for the Middle District of Louisiana

Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case comes to us as a Rule 23(f) interlocutory appeal from an order

certifying a class of plaintiffs who allege violations of the Telephone Consumer

Protection Act(“TCPA”), 47 U.S.C. § 227, specifically unsolicited advertisements

sent from one fax machine to another. Two questions are before the court. The

first question, raised for the first time on appeal, is whether the district court

had subject-matter jurisdiction over this case. We hold that the district court

had subject-matter jurisdiction under provisions of the Class Action Fairness Act

of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections

of 28 U.S.C.). The second question is whether the district court abused its

discretion by certifying the class. We hold that the district court abused its

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-30195

1 The portions of TCPA relevant here were materially amended by the Junk Fax

Prevention Act of 2005 (“JFPA”), Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C. §

227). Since the alleged violations of the statute occurred prior to the effective date of this

amendment, July 9, 2005, citations to the TCPA are to the version in effect prior to the

amendment, unless otherwise noted. Prior to the 2005 amendment, § 227(b)(1)(C) prohibited

the “use [of] any telephone facsimile machine, computer, or other device to send an unsolicited

advertisement to a telephone facsimile machine.”

2 The definition of “unsolicited advertisement” can now be found in subsection (a)(5),

whichprovides that“[t]he term ‘unsolicited advertisement’ means any material advertising the

commercial availability or quality of any property, goods, or services which is transmitted to

any person without that person's prior express invitation or permission, in writing or

otherwise.” (Emphasis indicates language added by the 2005 amendment.)

3

In 2003, the FCC issued an order reversing this presumption of consent. In re Rules

and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R.

14,014, 14,127 (2003) (“2003 TCPA Order”). The 2003 TCPA Order, however, never went into

effect as the FCC on several occasions delayed the order’s effective date and as, before the

order’s final effective date, Congress enacted the JFPA, which amended the TCPA and codified

the established business relationship exemption, see JFPA § 2, Pub. L. No. 109-21, 119 Stat.

2

discretion by certifying the class. We therefore reverse the district court’s

certification of the class and remand this case for such further proceedings as

may be appropriate and not inconsistent with this opinion.

I.

A.

The TCPA prohibits, inter alia, the sending of an “unsolicited

advertisement” via a fax machine to another fax machine. 47 U.S.C. §

227(b)(1)(C).1 A fax is an “unsolicited advertisement” if it advertises “the

commercial availability or quality of any property, goods, or services” and is

transmitted without the recipient’s “prior express invitation or permission.” §

227(a)(4).2 Moreover, in 1992, the Federal Communications Commission

(“FCC”), in adopting rules to implement the TCPA, concluded that fax

advertisements “from persons or entities who have an established business

relationship with the recipient can be deemed to be invited or permitted by the

recipient.” In re Rules and Regulations Implementing the Telephone Consumer

Protection Act of 1991, 7 F.C.C.R. 8752, 8779 n.87 (1992).3
No. 07-30195

359, 359-60 (2005) (codified at 47 U.S.C. § 227(b)(1)(C)(i)). See In re Rules and Regulations

Implementing the Telephone Consumer Protection Act of 1991, 21 F.C.C.R. 3787, 3789-91

(2006) (providing the history of the FCC’s rulemaking regarding the established business

relationship exemption). Thus, applicable regulations incorporated an established business

relationship exemption until this exemption was codified in the current version of the statute

by the JFPA.

4 Gene subsequently joined as co-defendants BioPay's insurers, Essex Insurance

Company and Evanston Insurance Company. Defendants-Appellants submitted three

briefs—one from BioPay and one from each insurer. Because these briefs contain similar

arguments, we refer to them collectively.

5 Gene’s motion for class certification defined the proposed class as:

All recipients of unsolicited telefacsimile messages and/or

advertisements within the State of Louisiana which were

transmitted and/or initiated by or on behalf of BIOPAY, L.L.C.,

between the dates of January 21, 2001, and through the present.

The named Class shall not include any recipients from whom the

Defendant has received the prior express invitation or permission

to receive the telefacsimile advertisements.

3

The recipient of an unsolicited fax advertisement may bring an action to

enjoin future violations of the TCPA and/or to recover the greater of his actual

damages or $500 for each such violation. § 227(b)(3). The monetary award may

be trebled if the court finds that a violation was willful or knowing. Id. 

B.

Between 2001 and 2005, Defendant-Appellant BioPay, through a thirdparty contractor, sent over 4,000 fax messages advertising its services to

potential clients in Louisiana. One of BioPay’s faxes was sent to Gene & Gene,

LLC (“Gene”). Gene filed a class-action suit against BioPay in federal court,

alleging that BioPay violated the TCPA by sending unsolicited fax

advertisements to Gene and to an unidentified number of class members.4 After

preliminary discovery, Gene moved for class certification, which BioPay

opposed.5
No. 07-30195

4

The distinction between consenting and non-consenting recipients was the

primary issue before the district court in the class-certification dispute. 

BioPay argued that determining whether the recipient of each fax had

consented to its transmission would require a series of individual factual

determinations, or mini-trials, which made class certification improper. This

argument was of course premised on the facts as they were developed in the

case. BioPay has admitted that it purchased databases that included the contact

information of potential customers, and BioPay also has admitted that it culled

fax numbers from these databases. BioPay, however, has produced evidence

that it also periodically culled fax numbers from other sources—from

information submitted by merchants through BioPay’s website, from information

submitted attrade shows BioPay attended, and also from lists of companies with

which BioPay or its affiliates had an established business relationship. BioPay

thus contends that a significant number of the faxes it sent were consented to

by the recipients. Further, BioPay has produced records of all the faxes that

were successfully sent. BioPay also has produced testimony, however, that its

database entries do not consistently or accurately reflect whether a given

recipient had consented to receive fax advertisements, and this is because

BioPay did not begin to record this information until May of 2004, and then only

with sporadic and therefore unreliable consistency. BioPay thus contends that

there is no class-wide basis by which to distinguish those fax recipients who had

consented to receiving faxes from those who had not consented, which suggests

that the determination of consent, or the lack thereof, would require hundreds

of mini-trials. 

Gene argued that class certification was proper because BioPay sent its fax

advertisements as part of a common course of conduct. Gene argued that it is

irrelevant that BioPay culled fax numbers from a variety of sources, as Biopay,
No. 07-30195

6

In its complaint Gene asserts that both federal-question jurisdiction and diversity

jurisdiction exist. We have held that Congress did not create federal-question jurisdiction over

private actions filed under the TCPA. Chair King, Inc. v. Houston Cellular Corp., 131 F.3d

507, 511, 514 (5th Cir. 1997) (citing 47 U.S.C. § 227(b)(3), permitting a private citizen to bring

an action “in an appropriate court of that State”). Our decision in Chair King has been

questioned by the Seventh Circuit in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th

Cir. 2005). Brill asserted that our decision in Chair King cannot be reconciled with subsequent

Supreme Court decisions in Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545

U.S. 308 (2005), and Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691 (2003). Brill, 427

5

according to Gene, bears the burden of proving consent and has not retained the

necessary documents or records to meet this burden. 

The district court agreed with Gene, at least in part, and certified the

class, determining that the proposed class meets the requirements of Rule 23(a)

and 23(b)(3) of the Federal Rules of Civil Procedure. Gene & Gene, LLC v.

BioPay, LLC, 240 F.R.D. 239 (M.D. La. 2006). BioPay now appeals the district

court’s certification of the class and, for the first time on appeal, questions

whether the district court had subject-matter jurisdiction over this case.

II.

We may consider subject-matter jurisdiction at any point, including for the

firsttime on appeal. Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th

Cir. 1999). Gene argues that we may not consider subject-matter jurisdiction

during a Rule 23(f) class-certification appeal, but this is incorrect. At all times,

even during a Rule 23(f) appeal, we may review the power of the federal courts

to entertain an action. See Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290,

294 & n.9 (5th Cir. 2001) (reaching issue of standing on a Rule 23(f) appeal and

noting that subject-matter jurisdiction is a similar question); see also FED. R.

CIV.P. 12(h)(3) (noting that a court is to dismiss an action “whenever it appears”

subject-matter jurisdiction is lacking). We now turn to consider whether the

district court had subject-matter jurisdiction over this case.

The district court had subject-matter jurisdiction over this case pursuant

to provisions of CAFA.6 CAFA amended 28 U.S.C. § 1332 to provide the federal
No. 07-30195

F.3d at 450. Although we are always free to consider jurisdictional arguments sua sponte, we

do not address any argument regarding the continued viability of our holding in Chair King

as Gene did not present any such argument and as subject-matter jurisdiction, in any event,

is proper under provisions of CAFA.

As to standard diversity jurisdiction, here there is no indication that any class member

satisfies the $75,000 amount-in-controversy requirement of 28 U.S.C. § 1332(a). As noted, the

TCPA allows statutory damages of $500 per offending fax, with up to treble damages for willful

or knowing violations of the statute. Even with treble damages for willful or knowing

violations of the statute, a single plaintiff would need to receive over fifty faxes to exceed the

$75,000 threshold. There is no indication that any one class member received so many faxes

and thus no indication that any one class member meets the amount-in-controversy

requirement. Gene argues that the class members’ claims may be aggregated, but this is

incorrect. In Grant v. Chevron Phillips Chem. Co., we reiterated the Supreme Court’s

fundamental rule that the potential recoveries of class members may not be aggregated to

satisfy the § 1332(a) amount-in-controversy requirement. 309 F.3d 864, 873 (5th Cir. 2002).

The occasional exception to this rule is when multiple plaintiffs assert a “common right.” See

Snyder v. Harris, 334 U.S. 332, 335 (1969). This is not the case with the members of Gene’s

proposed class.

6

courts with original jurisdiction over class actions when there is minimal

diversity, § 1332(d)(2), and the aggregate amount in controversy exceeds $5

million, exclusive of interest and costs, § 1332(d)(2), (6). Minimal diversity is

present here: Gene is domiciled in Louisiana and BioPay in Virginia. As for the

amount in controversy, Gene’s complaint held open the possibility of treble

damages, depending on the state of the proof. (The complaint reads: “Further,

if the court finds that the defendant willfully or knowingly violated the TCPA,

the court may, in its discretion, increase the amount of the award to an amount

equal to not more than 3 times the amount available under 47 U.S.C. §

227(b)(3).”) Given the possibility of treble damages under the TCPA, and given

that BioPay allegedly sent over 4,000 unsolicited faxes, the aggregate amount

in controversy exceeds $5 million (4,000 multiplied by $1,500 is $6 million). The

district court therefore had subject-matter jurisdiction over this case. 
No. 07-30195

7 Rule 23(a) states: 

(a) Prerequisites: One or more members of a class may sue or be sued as

representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

7

III.

A.

We review class-certification decisions for abuse of discretion. See Allison

v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998). “Implicit in this

deferential standard is a recognition of the essentially factual basis of the

certification inquiry and of the district court’s inherent power to manage and

control pending litigation.” Id. We review de novo, however, whether the

district court applied the correct legal standards in determining whether to

certify the class. Id.

To obtain class certification, a party must satisfy Rule 23(a)’s four

threshold requirements (numerosity, commonality, typicality, and adequacy of

representation), as well as the requirements of Rule 23(b)(1), (2), or (3). See

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). We emphasize

that it is the party seeking certification that bears the burden of establishing

that the requirements of Rule 23 have been met. O’Sullivan v. Countrywide

Home Loans, Inc., 319 F.3d 732, 737-38 (5th Cir. 2003). And we also emphasize

that district courts must “conduct a rigorous analysis of the Rule 23

prerequisites before certifying a class.” Id. at 738 (internal quotation marks

omitted). 

As noted above, the district court determined that Gene’s proposed class

satisfies the requirements of Rule 23(a) and (b)(3).7 BioPay argues that Gene
No. 07-30195

In relevant part Rule 23(b)(3) states:

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is

satisfied and if:

. . . 

(3) 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.

8

fails to establish commonality and typicality under Rule 23(a) and fails to

establish either of the requirements of Rule 23(b)(3). BioPay’s argument is that

the class members’ claims are too dissimilar for class treatment, particularly

with respect to the issue of whether each of the class members consented to

receive fax advertisements from BioPay. Gene counters that the requirements

of Rule 23(a) and (b)(3) are satisfied because BioPay engaged in a common

course of conduct.

Since the thresholds for commonality and typicality under Rule 23(a) are

not high, see James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001), we will

assume that Rule 23(a) is satisfied and turn to evaluate the parties’ arguments

against the more exacting demands of Rule 23(b)(3). A party seeking class

certification under Rule 23(b)(3), as Gene does here, must demonstrate both

“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.” FED.R.CIV.P. 23(b)(3). Because we conclude that Gene’s proposed

class does not satisfy the predominance requirement and that the district court

abused its discretion in determining otherwise, we do not address Rule 23(b)(3)’s

superiority requirement.
No. 07-30195

9

B.

The predominance inquiry requires a court to consider “how a trial on the

merits would be conducted if a class were certified.” Bell Atl. Corp. v. AT&T

Corp., 339 F.3d 294, 302 (5th Cir. 2003) (quotation marks and citation omitted).

This, in turn, “entails identifying the substantive issues that will control the

outcome, assessing which issues will predominate, and then determining

whether the issues are common to the class, a process that ultimately prevents

the class from degenerating into a series of individual trials.” Id. (quotation

marks and citation omitted). The predominance requirement of Rule 23(b)(3),

though redolent of the commonality requirement of Rule 23(a), is “far more

demanding” because it “tests whether proposed classes are sufficiently cohesive

to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623-24.

The district court determined that the predominance requirement was

satisfied based on a “common course of conduct, fax blasting.” The district court

did not, however, identify the substantive issues that will control the outcome

of the case, assess which of these issues will predominate, or determine whether

these issues are common throughoutthe proposed class. We are most concerned,

however,thatthe district courtfailed to address the broader consideration ofthe

predominance requirement: The district court did not explain how the common

course of conduct it described would affect a trial on the merits. Thus, the

district court’s assertion that this case would not degenerate into a series of

individual trials is largely unsupported and is, in our opinion, mistaken.

The district court referenced Mullen v. Treasure Chest Casino, LLC, 186

F.3d 620 (5th Cir. 1999), to support its determination that BioPay’s common

course of conduct, as described by Gene, i.e., the transmission of identical faxes

via the same procedure, satisfies the predominance inquiry. The district court

noted that in Mullen “the putative class members [were] symptomatic [of

occupational respiratory illness] by definition and claim[ed] injury from the same
No. 07-30195

10

defective ventilation system over the same general period of time.” Id. at 627.

The district court, however, mistakes the force ofthe quoted language. That the

putative class members in Mullen suffered the same injury from the same source

over the same general period of time was relevant because these facts allowed

for a class-wide basis for deciding two “pivotal” issues—seaworthiness and

negligent breach of duty. Id. at 626-27. Mullen, then, indicates only that

commonalities among class members will sometimes, but not necessarily always,

allow for a class-wide basis for deciding predominant issues. Here, the district

court simply noted a common course of conduct, fax blasting, but did not

determine, as we did in Mullen, whether the common course of conduct provided

a class-wide basis for deciding the predominant class issues of fact and law.

C.

To decide whether there is a class-wide basis for deciding the predominant

issues, we must first ascertain which are the predominant issues that must be

decided on a class basis. Gene attempts to frame several substantive issues and

asserts that these issues, as framed, are common to the class. But one

substantive issue undoubtedly will determine how a trial on the merits will be

conducted if the proposed class is certified. This issue, as all ultimately

acknowledge, is whether BioPay’s fax advertisements were transmitted without

the prior express invitation or permission of each recipient. Thus, the

predominant issue of fact is undoubtedly one of individual consent. We now

turn, as is necessary to determine whether the predominance requirement is

satisfied,to consider how this predominant and basically factual issue will affect

a class-action trial on the merits.

As a threshold matter, the parties first engage an issue irrelevant to our

analysis: Gene argues that BioPay must establish consent as an affirmative

defense; BioPay argues that consent is an element of the cause of action. The

district court did not decide this issue, and we do not concern ourselves with it
No. 07-30195

11

either. An affirmative defense is not per se irrelevant to the predominance

inquiry, as the parties seem to believe. We have noted that the “predominance

of individual issues necessary to decide an affirmative defense may preclude

class certification.” In re Monumental Life Ins. Co., 365 F.3d 408, 420 (5th Cir.

2004) (citing Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996)

(explaining that “a court must understand the claims, defenses, relevant facts,

and applicable substantive law in order to make a meaningful determination of

certification issues”)). Further, this case is an exemplar of why affirmative

defenses are not per se irrelevant to the predominance inquiry. Whether

established by BioPay as an affirmative defense or by Gene as an element of the

cause of action, the issue of consent will entirely determine how the proposed

class-action trial will be conducted on the merits.

As to how consent, vel non, will be established, we note first that several

federal district courts have addressed this issue. We find their efforts

instructive. In Forman v. Data Transfer, Inc., Forman moved for the

certification of a class composed of“all residents and businesses who . . . received

unsolicited facsimile advertisements” within a given period. 164 F.R.D. 400, 402

(E.D. Pa. 1995). The Forman court, in denying class certification, noted thatthe

gravamen of Forman’s complaint was not a “common course of conduct” by Data

Transfer but “a series of individual transmissions under individual

circumstances, each of which is an alleged violation of the statute.” Id. at 404.

TheForman court consequently determined that the predominance requirement

was not satisfied. Id.; see also Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162,

1169-70 (S.D. Ind. 1997) (denying class certification because consent would have

to be proven via individual inquiries as to each class member); Levitt v. Fax.com,

2007 WL 3169078, at *4-7 (D. Md. May 25, 2007) (same).

In contrast, in Kavu v. Omnipak Corp., Kavu moved for the certification

of a class composed of “[a]ll persons who received an unsolicited advertisement
No. 07-30195

8 By this we mean only that in some cases there may be some possibility of class-wide

proof on the question of consent.

12

. . . via facsimile from [Omnipak]” within a given period. 246 F.R.D. 642, 645

(W.D. Wash. 2007). The Kavu court, in granting class certification, determined

that the question of consent was susceptible to common proof. Id. at 647.

Importantly, the Kavu court did not disagree with earlier federal district court

determinations thatindividual consent issues could preclude class certification.

Id. Rather, the Kavu court determined that in its case the question of consent

presented would not require “individual evidence.” Id. This was true because

Omnipak had obtained all of the fax recipients’ fax numbers from a single

purveyor of such information and because, given this fact, Kavu was able to

propose a novel, class-wide means of establishing the lack of consent based on

arguably applicable federal regulations. Id. (citing 47 C.F.R. §

64.1200(a)(3)(ii)(B), which indicates that if a “sender obtains the facsimile

number from a [commercial database], the sender must take reasonable steps

to verify that the recipient agreed to make the number available for

distribution”). The common question in Kavu was thus whether the inclusion

of the recipients’ fax numbers in the purchased database indicated their consent

to receive fax advertisements, and there were therefore no questions of

individual consent. Id.; see also Hinman v. M and M Rental Ctr., 2008 WL

927910, at *4 (N.D. Ill. Apr. 7, 2008) (granting class certification on similar

grounds).

We reference Forman and Kavu in some detail to make a few basic points.

First, as these cases illustrate, violations of § 227(b)(1)(C) of the TCPA are not

per se unsuitable for class resolution.8 But, as these cases also illustrate, there

are no invariable rules regarding the suitability of a particular case filed under

this subsection of the TCPA for class treatment; the unique facts of each case

generally will determine whether certification is proper. This of course means
No. 07-30195

9 Gene challenges the established business relationship regulations, arguing that they

are contrary to the clear intent of the statute. But we do not address this argument, as doing

so is unnecessary for the resolution of this appeal. Given the facts of this case, we would hold

that consentis not a common factissue even ifthe established business relationship exemption

was unavailable, as consent can be established by other means.

13

that plaintiffs must advance a viable theory employing generalized proof to

establish liability with respect to the class involved, and it means too that

district courts must only certify class actions filed under the TCPA when such

a theory has been advanced. With these premises in mind, we now focus more

directly on the parties’ arguments.

D.

Gene asserts that“testimony establishes that BioPay never obtained prior

express permission or invitation from any of the class members and that all of

the faxes were sent in accordance with the same procedure.” From this, Gene

urges that “individual determinations are unnecessary.” 

BioPay, however, strenuously asserts that the evidence shows that some

of the fax advertisements it sent were solicited by the recipients, but which ones

can only be decided on a case-by-case basis. As noted above, the evidence shows

that BioPay culled fax numbers from purchased databases but also periodically

culled fax numbers from various other sources—from information submitted by

merchants through BioPay’s website, from information submitted at trade shows

BioPay attended, and also from lists of companies with which BioPay or its

affiliates had an established business relationship.9 BioPay has records of all

the faxes that were successfully sent, but produces unrefuted testimony that its

database entries do not consistently or accurately reflect whether a given

recipient had consented to receive fax advertisements. BioPay argues that

because the evidence shows that the recipients’ fax numbers were collected over

time and from a variety of sources, individual inquiries of the recipients are

necessary to sort out which transmission was consented to and which was not.
No. 07-30195

14

In short, there is no class-wide proof available to decide consent and only minitrials can determine this issue.

Under the established facts of this case, we think BioPay has the

compelling argument. First, Gene’s assertion that testimony establishes that

BioPay never obtained prior express invitation or permission from any class

member is unsupported. BioPay employees testified to the contrary and also

testified that there is no class-wide basis for distinguishing which recipients

gave consent and which did not. This evidence was not contradicted.

Second, and as we noted above in our discussion of Mullen, that BioPay

sent its fax advertisements in accordance with the same procedure is not

necessarily determinative of whether class-wide proof is available to establish

consent. Moreover, and despite Gene’s arguments to the contrary, the common

question distinguishing Kavu from Forman is absent here. Unlike the

single-source contactlistin Kavu, here BioPay culled fax numbers from a variety

of sources over a period of time, such that class-wide proof of consent is not

possible under the theory advanced in Kavu. 

And, finally, and perhaps most importantly, we do not perceive in Gene’s

arguments any other sensible method of establishing consent or the lack thereof

via class-wide proof. To be sure, the burden is on Gene to show that the

requirements for class certification are satisfied. Gene has not presented facts

or arguments to support that this type of dispute will not exist as to a significant

number of class members.

Thus, the determinative question of whether consent can be established

via class-wide proof must, given the particular facts of this case, be answered in

the negative. Gene has failed to advance a viable theory of generalized proof to

identify those persons, if any, to whom BioPay may be liable under the TCPA.

Indeed, neither Gene nor the district court explain how the course of conduct

they reference would be of particular relevance at trial. This prevents the
No. 07-30195

15

purported class from having the required cohesiveness and defeats the

predominance requirement. 

We emphasize again, however, that we do not hold as a matter of law that

the consent requirement in the case before us defeats the possibility of class

certification. We merely hold that Gene has failed to advance any viable theory

employing generalized proof concerning the lack of consent with respect to the

class involved in this case; that this leads to the conclusion that myriad minitrials cannot be avoided; and that, given these conclusions and those we have

reached above, the district court abused its discretion in certifying the class

IV.

For the assigned reasons, we reverse the district court’s certification ofthe

class and remand this case for further proceedings not inconsistent with this

opinion.

REVERSED and REMANDED.