Class certification under the Telephone Consumer Protection Act (TCPA); 47 USC § 227(b); Permission to appeal a district court order certifying a class; FedRCivP 23(f); In re Delta Air Lines; Class wide consent; Predominance of common questions; Whether the district court created an impermissible “fail-safe class”; Lack of data to support defendant’s financial harm claim; Effect of the district court’s statements it may reconsider certification

In an order, the court applied the four Delta Air Lines factors that guide consideration of a Rule 23(f) petition and denied defendant-Humana’s petition to appeal the district court’s order certifying a class in this action alleging violations of the TCPA. Among other things, it held that Humana failed to show that the district court abused its discretion in finding that the predominance of common questions requirement was satisfied. The court first held that Humana failed to show “that the district court abused its discretion in finding that predominance is satisfied even if the issue of consent cannot be determined on a class-wide basis.” Regarding the methodology that plaintiff’s expert “submitted for ascertaining and notifying potential class members[,]” the court noted that Humana only offered 13 instances of potential class members who would be excluded under this methodology. This was insufficient to affect the court’s deference to the district court’s rulings. Humana also argued that the district court created an impermissible “fail-safe class when it modified the class definition to exclude those who consented to receive calls on behalf of a Humana account holder.” The court explained that a fail-safe class “would include only recipients who did not consent to receive calls—because consent is an element of the TCPA claim, membership depends on proving liability. Here, the class definition excludes individuals who are current account holders of Humana, or persons who consented to receiving calls on the account holder’s behalf, meaning that the definition is not defined entirely in terms of consent or lack thereof.” Additionally, as to the “death-knell” factor, the court noted that Humana failed to submit data supporting its claim of potential financial harm. Finally, the court found that the posture of the case weighed against granting the petition. The district court repeatedly stated that it “might reconsider class certification.”