`
`United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 20-1537
`
`BAIS YAAKOV OF SPRING VALLEY,
`on behalf of itself and all others similarly situated,
`
`Plaintiff, Appellant,
`
`v.
`
`ACT, INC.,
`
`Defendant, Appellee.
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Timothy S. Hillman, U.S. District Judge]
`
`
`
`Before
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`Lynch, Kayatta, and Barron,
`Circuit Judges.
`
`
`
`
`
`
`
`
`
`Aytan Y. Bellin, with whom Bellin & Associates LLC was on
`brief, for appellant.
`Robert A. Burgoyne, with whom Perkins Coie LLP, Robert L.
`Leonard, and Doherty, Wallace, Pillsbury & Murphy, P.C., were on
`brief, for appellee.
`
`
`
`
`
`
`August 30, 2021
`
`
`
`
`
`
`
`
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`KAYATTA, Circuit Judge. ACT, Inc., is a non-profit
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`entity that develops and administers the ACT college admissions
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`test. Bais Yaakov of Spring Valley is a small private high school
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`to which ACT sent three one-page faxes in 2012. Bais Yaakov has
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`since pursued ACT with a zeal that would impress even Hugo's
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`Inspector Javert. On behalf of itself and a class of similarly
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`situated recipients of faxes from ACT, Bais Yaakov alleges that
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`the faxes were unsolicited advertisements sent in violation of the
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`Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C.
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`§ 227(b)(1)(C). Bais Yaakov seeks injunctive relief and statutory
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`damages in an amount ACT estimates to exceed $400,000,000.
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`After almost eight years of litigation -- including an
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`interlocutory appeal to this court, see Bais Yaakov of Spring
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`Valley v. ACT, Inc., 798 F.3d 46, 46 (1st Cir. 2015) -- the district
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`court entered judgment against Bais Yaakov. It found that class
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`certification was unwarranted and that Bais Yaakov's individual
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`claim was rendered moot by ACT's offer to pay the full amount of
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`that claim ($46,500) and its promise not to send further faxes to
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`Bais Yaakov. While we see no abuse of discretion in the denial of
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`class certification, we vacate the judgment because Bais Yaakov's
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`own claim for damages is not quite moot. Our reasoning follows.
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`- 2 -
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`I.
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`In 2005, Bais Yaakov filled out a High School Code
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`Request Form, on which it provided its fax number. Students use
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`the High School Code number to have their ACT test scores reported
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`to their high school. On the form, Bais Yaakov checked a box
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`indicating that it wanted to administer certain standardized
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`tests, that it wanted to receive its students' test scores, and
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`that it wanted to receive SAT or ACT publications.
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`Seven years later, ACT sent three faxes to Bais Yaakov
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`over the course of three months. The first fax was a one-page
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`flyer stating in large bold letters, "Don't forget to register for
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`the ACT!" Underneath, the fax directed counseling staff to
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`"[r]emind" students of the next ACT test date, which it featured
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`prominently. It listed the registration deadlines for the test
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`date and advised that "[s]tudents can meet the . . . deadline by
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`registering on-line" at a specified ACT web address. In the top-
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`left corner, the fax presented the name "ACT" above the words
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`"advancing lives."
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`The second fax was identical to the first but with a
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`different test date and corresponding registration deadlines.
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`The third fax contained what appears to be an image of
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`a crowd cheering at a baseball game, with the words "Give Your
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`Students the Home-Field Advantage" superimposed on one side and
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`"ACT" on the other. The bottom of the image stated, "Become an
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`- 3 -
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`ACT Test Center." Beneath the image was more text, which said,
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`among other things: "By offering the ACT at your high school you
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`provide your students with a competitive edge."; "Your school can
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`benefit too. Your school staff will be compensated for assuming
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`the roles of test supervisor, room supervisors, and proctors.";
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`and "The curriculum-based ACT is accepted by all 4-year colleges
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`and universities in the U.S." (emphasis omitted).
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`Bais Yaakov alleges that these three faxes are among
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`over 28,000 unlawfully faxed advertisements ACT sent to over 7,000
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`schools across the country between 2008 and 2012.
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`II.
`
`A.
`
`The TCPA prohibits sending advertisements to fax
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`machines, but with two principal exceptions: An advertisement may
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`be sent to a fax machine (1) if the person to whom it is sent has
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`given "prior express invitation or permission, in writing or
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`otherwise," 47 U.S.C. § 227(a)(5); or (2) if certain conditions
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`are satisfied, one of which requires the inclusion of an opt-out
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`notice on the fax, id. § 227(b)(1)(C). None of the faxes at issue
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`in this appeal contains an opt-out notice, so any that are
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`advertisements are unlawful if they were sent without prior express
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`invitation or permission.
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`By regulation, the Federal Communications Commission
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`(FCC) promulgated a substantial further limitation on sending
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`advertisements by fax. In its so-called Opt-Out Regulation (also
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`referred to as the Solicited Fax Rule), the agency decreed that
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`even faxes sent with prior express invitation or permission must
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`contain an opt-out notice. See Rules & Regulations Implementing
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`the Telephone Consumer Protection Act of 1991; Junk Fax Prevention
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`Act of 2005, 71 Fed. Reg. 25,967, 25,971-72 (May 3, 2006) (formerly
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`codified at 47 C.F.R. § 64.1200(a)(4)(iv)); Bais Yaakov of Spring
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`Valley v. FCC, 852 F.3d 1078, 1080 (D.C. Cir. 2017) (Kavanaugh,
`
`J.). ACT included no opt-out notice in any of its faxes, so if
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`the Opt-Out Regulation is valid, prior express invitation or
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`permission would be no defense. Instead, ACT's liability to any
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`recipient would turn entirely on whether the fax was an
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`advertisement.
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`The FCC defines the term "advertisement" for purposes of
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`the TCPA as "any material advertising the commercial availability
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`or quality of any property, goods, or services." 47 C.F.R.
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`§ 64.1200(f)(1); see also 47 U.S.C. § 227(a)(5) (using similar
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`language to define the term "unsolicited advertisement"). To
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`classify a communication as "advertising," the agency looks to the
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`communication's "primary purpose." In re Rules & Regulations
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`Implementing the Telephone Consumer Protection Act of 1991, 31 FCC
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`Rcd. 13,289, 13,291 (2016).
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`- 5 -
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`
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`B.
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`Bais Yaakov proposed two alternative classes, labeled
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`Class A and Class B. With Class A, Bais Yaakov sought to include
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`only recipients of "unsolicited" fax "advertisements" from ACT
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`containing no opt-out notice. With Class B, Bais Yaakov sought to
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`take advantage of the Opt-Out Regulation by broadening the class
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`to include recipients of any (even solicited) fax advertisements
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`from ACT that did not contain an opt-out notice as required by the
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`regulation.
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`With the parties' consent, the district court considered
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`first whether the Opt-Out Regulation was valid. In finding the
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`regulation to be invalid, the district court deemed binding a
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`decision to that effect by the Court of Appeals for the D.C.
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`Circuit. See Bais Yaakov of Spring Valley v. ACT, Inc., 328 F.R.D.
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`6, 10 (D. Mass. 2018) (citing Bais Yaakov, 852 F.3d at 1083).1
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`Having eliminated the Opt-Out Regulation as a tool for
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`establishing that every fax sent by ACT necessarily violated the
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`TCPA because ACT never included opt-out notices, the district court
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`turned its attention to the two issues raised by the TCPA's
`
`
`1 Following the D.C. Circuit's ruling in Bais Yaakov, the
`FCC eventually repealed the Opt-Out Regulation. See In re Rules
`& Regulations Implementing the Telephone Consumer Protection Act
`of 1991 Junk Fax Prevention Act of 2005 Petitions for
`Reconsideration &/or Declaratory Ruling & Retroactive Waiver of 47
`C.F.R. § 64.1200(a)(4)(iv) Regarding the Commission's Opt-Out
`Notice Requirement for Faxes Sent with the Recipient's Prior
`Express Permission, 35 FCC Rcd. 3079 (2020).
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`- 6 -
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`
`
`
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`exceptions from its prohibition on advertisements: Did the fax
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`contain an advertisement? And, if so, was it unsolicited (i.e.,
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`sent without prior express invitation or permission)? As to these
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`two issues, the district court took the standard Rule 23 approach:
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`It did not try to resolve the issues; rather, it properly tried to
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`decide whether Bais Yaakov had shown that resolution of the issues
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`could be accomplished on a common, class-wide basis. See Amgen
`
`Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459–60 (2013)
`
`("[T]he office of a Rule 23(b)(3) certification ruling is not to
`
`adjudicate the case; rather it is to select the 'metho[d]' best
`
`suited to adjudication of the controversy fairly and efficiently."
`
`(second alteration in original)).
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`Looking first at the request to certify Class B, the
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`district court found that the invalidity of the Opt-Out Regulation
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`permitted a defense based on prior express permission. Assaying
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`the record, it then concluded that the need to adjudicate such a
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`defense would require an examination of the circumstances of each
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`class member and its communications with ACT to determine whether
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`that class member gave the requisite permission. And the need to
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`engage in such an individual inquiry meant that common issues would
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`not predominate as required in order to certify a class under
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`Rule 23(b)(3). See In re Asacol Antitrust Litig., 907 F.3d 42,
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`51–52 (1st Cir. 2018).
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`- 7 -
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`
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`With proposed Class A, Bais Yaakov sought to eliminate
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`this diversity among class members by limiting that class to
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`recipients of unsolicited faxes. The district court rejected this
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`attempt, finding that such a class would constitute a "fail-safe
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`class," i.e., a class that would bind class members only if they
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`won. See In re Nexium Antitrust Litig., 777 F.3d 9, 22 & n.19
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`(1st Cir. 2015). The district court then reasoned that if the
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`class were redefined to include recipients of any faxes from ACT,
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`it would suffer from the same defects as did Class B.
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`Having denied class certification, the district court
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`turned to Bais Yaakov's individual claim, on which the parties had
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`cross-moved for summary judgment. See Bais Yaakov of Spring Valley
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`v. ACT, Inc., 438 F. Supp. 3d 106, 108 (D. Mass. 2020). The
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`district court found that genuine disputes of material fact
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`-- namely, whether the three faxes identified by Bais Yaakov
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`qualified as advertisements and whether Bais Yaakov gave the
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`requisite permission -- precluded granting summary judgment for
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`either party. Id. at 109–10.
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`Later, ACT moved to dismiss Bais Yaakov's claim as moot.
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`According to the district court, by that point ACT had
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`"unconditionally tendered to [Bais Yaakov] all the statutory
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`damages that it [sought] on an individual basis." Bais Yaakov of
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`Spring Valley v. ACT, Inc., 461 F. Supp. 3d 3, 5 (D. Mass. 2020).
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`As to injunctive relief, ACT had not sent Bais Yaakov a fax since
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`- 8 -
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`2012, and it had agreed not to send any faxes in the future in
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`violation of the TCPA. Id. at 4–5. The district court therefore
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`found the case moot and dismissed it. Id. at 5.
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`Bais Yaakov now appeals three rulings of the district
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`court: the holding that the Opt-Out Regulation is invalid, the
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`denial of class certification, and the dismissal of Bais Yaakov's
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`individual claim as moot. Bais Yaakov also asks us to review the
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`district court's denial of its motion for summary judgment, but
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`"[i]t is settled beyond peradventure that we lack jurisdiction to
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`hear appeals from the routine denial of summary judgment motions
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`on the merits." Morse v. Cloutier, 869 F.3d 16, 31 (1st Cir.
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`2017).
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`III.
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`We consider first the validity of the Opt-Out
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`Regulation. The parties argue at length over whether the decision
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`of the D.C. Circuit finding the regulation invalid binds this
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`court. We sidestep that issue because we find the D.C. Circuit's
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`decision -- whether binding or not -- correct, largely for the
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`reasons cogently set forth in that opinion. See Bais Yaakov, 852
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`F.3d at 1081–83; see also Physicians Healthsource, Inc. v.
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`Cephalon, Inc., 954 F.3d 615, 624 n.11 (3d Cir. 2020) (declining
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`to decide whether Bais Yaakov was binding on other circuits because
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`it agreed with the D.C. Circuit's reasoning); Sandusky Wellness
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`Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 467 &
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`- 9 -
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`n.1 (6th Cir. 2017) (treating the D.C. Circuit's ruling as binding
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`and separately agreeing with its reasoning); Nack v. Walburg, 715
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`F.3d 680, 682 (8th Cir. 2013) (noting that the FCC's authority to
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`promulgate the Opt-Out Regulation was "questionable").
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`When a court reviews an agency's construction of a
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`statute the agency administers, it conducts the familiar Chevron
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`two-step analysis:
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`First, always, is the question whether
`Congress has directly spoken to the precise
`question at issue. If the intent of Congress
`is clear, that is the end of the matter; for
`the court, as well as the agency, must give
`effect to the unambiguously expressed intent
`of Congress. . . . [I]f the statute is silent
`or ambiguous with respect to the specific
`issue, the question for the court is whether
`the agency's answer is based on a permissible
`construction of the statute.
`
`Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
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`842–43 (1984) (footnote omitted). In Bais Yaakov, the D.C. Circuit
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`stopped after the first step. 852 F.3d at 1082. It held that
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`Congress had spoken directly about whether solicited fax
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`advertisements required opt-out notices (giving the FCC no
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`authority to issue a regulation on the matter), because the text
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`of the statute explicitly required opt-out notices only on
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`unsolicited fax advertisements and said nothing about requiring
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`such notices on solicited fax advertisements. See id.; 47 U.S.C.
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`§ 227(b)(2)(C)(iii) (prohibiting the sending via fax of "an
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`unsolicited advertisement, unless [among other things,] the
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`- 10 -
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`unsolicited advertisement contains a notice meeting the
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`requirements under" another provision of the statute).
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`This reasoning makes good sense. The Supreme Court has
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`directed courts to apply "traditional tools of statutory
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`construction" in determining Congress's intent, Chevron, 467 U.S.
`
`at 843 n.9, and it is a "settled rule that [courts] must, if
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`possible, construe a statute to give every word some operative
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`effect," Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157,
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`167 (2004). Moreover, in another subsection of the TCPA, Congress
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`placed requirements not just on unsolicited fax advertisements but
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`on "any communication" or "any message" sent via fax, 47 U.S.C.
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`§ 227(d)(1)(A), (B), demonstrating that when Congress wanted to
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`regulate faxes broadly, it used broad language to do so. See
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`Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (explaining
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`the "general principle of statutory construction" that courts
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`presume Congress has acted "intentionally and purposely" when it
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`"includes particular language in one section of a statute but omits
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`it in another section of the same Act" (quoting Russello v. United
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`States, 464 U.S. 16, 23 (1983))). To read the statute as requiring
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`opt-out notices on solicited advertisements would be to remove the
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`word "unsolicited" from the provision discussing opt-out notices
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`or to ink in new provisions discussing solicited faxes.
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`The panel dissent from the D.C. Circuit's opinion in
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`Bais Yaakov criticized the majority for "fail[ing] to see the FCC's
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`rationale for requiring that all fax ads include an informative
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`opt-out notice," which the agency had justified as an
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`interpretation of what it means for a fax to be sent with "prior
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`express invitation or permission" and therefore "solicited." 852
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`F.3d at 1083-84 (Pillard, J., dissenting). But, assuming that the
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`FCC might justifiably conclude that a fax is not solicited within
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`the meaning of the TCPA if the immediately preceding fax did not
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`include an opt-out mechanism, we do not see how the agency
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`reasonably could have concluded that a particular fax is
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`unsolicited unless it itself contains an opt-out notice. And,
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`even if the presence of an opt-out notice bears on whether the
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`subsequently received fax is solicited, the first fax received
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`after the recipient provides express permission cannot be
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`considered unsolicited under any plausible construction of the
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`term. Thus, as the FCC's rule applied to every fax sent, it
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`required an opt-out notice on at least some faxes that were
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`indisputably solicited and cannot be sustained as an
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`interpretation of what "solicited" means. Nor is it our role to
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`rewrite the regulation, even if one assumes that some alternative
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`version might suffice.
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`Bais Yaakov argues, however, that our precedent compels
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`a different understanding of whether the FCC has authority to
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`require opt-out notices on solicited fax advertisements. It
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`attempts to analogize to Alexander v. Treasurers of Boston
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`
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`University, 766 F.2d 630 (1st Cir. 1985), a case concerning the
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`so-called Solomon Amendment, which denied federal financial aid to
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`students who were required to register for the military draft but
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`failed to do so. Id. at 632. To implement the Amendment, the
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`Secretary of Education obviously needed to know whether each
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`financial aid applicant was required to register for the draft
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`and, if so, whether the applicant had in fact registered. So the
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`Secretary simply required each applicant as a condition of
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`receiving aid to certify either that he or she was registered or
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`was not required to register. Id. at 632–33. We found that
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`requiring applicants for aid to indicate that they were eligible
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`for that aid, with a "minimum of fuss and inconvenience," id. at
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`638, to be within the Secretary's authority to promulgate
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`regulations so as to do the job Congress assigned it. "[T]he
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`Secretary is simply saying that if an individual is unwilling to
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`tell the government that he or she fulfills the conditions for
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`aid, the government will not dispense it." Id. at 639.
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`The analogy to Alexander is unpersuasive. There, as
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`explained, we concluded that, where the Secretary was uncertain
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`whether a particular aid applicant was within the category of
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`people who might be denied aid under the statute, it could impose
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`a burden on that individual in the name of determining whether he
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`or she was in fact within that regulable category. Here, Bais
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`Yaakov asks us to hold something very different: that an agency
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`can regulate a particular type of fax that it knows with certainty
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`is necessarily beyond its regulatory authority -- specifically, a
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`first fax that is plainly a solicited one -- in order to determine
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`whether a subsequently received fax does fall within the scope of
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`its authority. Bais Yaakov has not explained why we can or should
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`extend Alexander in that way. As such, the Opt-Out Regulation
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`finds no haven in Alexander. See Ragsdale v. Wolverine World Wide,
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`Inc., 535 U.S. 81, 91-92 (2002).
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`IV.
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`A.
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`We turn our attention next to Bais Yaakov's appeal of
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`the district court's order denying class certification. In
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`briefing that challenge, the parties sensibly train their
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`arguments on the requirements of Rule 23(b)(3) of the Federal Rules
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`of Civil Procedure, which states in pertinent part as follows: "A
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`class action may be maintained if . . . the court finds that the
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`questions of law or fact common to class members predominate over
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`any questions affecting only individual members, and that a class
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`action is superior to other available methods for fairly and
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`efficiently adjudicating the controversy."
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`In practice, litigation over these requirements often
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`reduces itself to a contest in which the party opposing
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`certification points to issues that it claims will need to be
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`decided separately for many class members. In turn, the putative
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`- 14 -
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`class representative tries to carry the burden of convincing the
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`court either that prevailing on any of those issues is not
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`important to obtaining the remedy sought, that the issues can be
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`adjudicated in a manner that produces a common answer for all class
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`members, or that, to the extent individual issues remain, they can
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`be resolved in a manner that is both practicable and protective of
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`the parties' rights. See Asacol, 907 F.3d at 51 ("The aim of the
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`predominance inquiry is to test whether any dissimilarity among
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`the claims of class members can be dealt with in a manner that is
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`not 'inefficient or unfair.'" (quoting Amgen, Inc., 568 U.S. at
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`469)). "Inefficiency can be pictured as a line of thousands of
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`class members waiting their turn to offer testimony and evidence
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`on individual issues." Id. "Unfairness is equally well pictured
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`as an attempt to eliminate inefficiency by presuming to do away
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`with the rights a party would customarily have to raise plausible
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`individual challenges on those issues." Id. at 51–52.
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`True to form, ACT points to five issues allegedly central
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`to the relief sought that ACT claims cannot be resolved fairly
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`without an unmanageable need to consider the varying circumstances
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`of individual class members. These issues are: (1) Did the school
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`actually receive a fax from ACT? (2) Which fax did it receive?
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`(3) Was the fax an advertisement when viewed in the circumstances
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`of that recipient? (4) Does that school have the capacity to sue
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`or belong to a class? and (5) Did the recipient of the fax
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`- 15 -
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`advertisement provide prior express permission for ACT to send the
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`advertisement by fax?
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`The district court sidestepped the first four of these
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`issues, training its attention on the fifth, the question of
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`permission: Did a recipient of a faxed advertisement give ACT
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`prior express permission to send the advertisement by fax? Under
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`Class A, this issue must be resolved to determine even if someone
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`is a class member (i.e., received an "unsolicited" fax). Under
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`Class B, this issue must be resolved to determine whether ACT has
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`a defense on the merits (i.e., that it received prior express
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`permission to send the fax). 47 U.S.C. § 227(a)(5), (b)(1)(C).
`
`In either instance, the pivotal Rule 23 question is whether the
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`record reasonably shows that some putative class members may have
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`permitted ACT to send by fax what ACT faxed them and, if so,
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`whether there is a fair and efficient method for culling those
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`consenting recipients from the class. The district court found
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`that ACT presented sufficient evidence that the class likely
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`included members who invited ACT to send any materials by fax, and
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`that to identify those members the court would have to "parse
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`through each unique relationship" between every class member and
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`ACT; hence, certification of Class B was precluded for lack of
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`predominance.
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`As to Class A, the district court found that limiting
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`the definition of class members to those who received "unsolicited"
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`- 16 -
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`faxes created a prohibited "fail-safe class," Messner v.
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`Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012),
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`and that, in any event, no jiggering with the class definition
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`would eliminate the need to decide the issue of permission (or
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`solicitation) for each putative class member. We now review that
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`decision, reversing only if we find an abuse of discretion
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`(including any error of law). Asacol, 907 F.3d at 51.
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`B.
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`In deciding whether individual issues predominate over
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`common questions, a court must not rely on mere speculation that
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`individual issues may arise. See Waste Mgmt. Holdings, Inc. v.
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`Mowbray, 208 F.3d 288, 298 (1st Cir. 2000); Bridging Cmtys. Inc.
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`v. Top Flite Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016)
`
`(concluding that the district court abused its discretion in
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`finding that issues of consent predominated where the defendant
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`"did not offer any information or evidence to support that
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`theory"). Rather, it should consider only those issues that would
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`likely arise if an individual class member's claims were being
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`adjudicated on the merits. See Mowbray, 208 F.3d at 298; Madison
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`v. Chalmette Ref., L.L.C., 637 F.3d 551, 555 (5th Cir. 2011). In
`
`so doing, a court considers "the probable course of the litigation"
`
`so as to "formulate some prediction as to how specific issues will
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`play out in order to determine whether common or individual issues
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`predominate." Mowbray, 208 F.3d at 298. Even then, "the mere
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`- 17 -
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`
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`fact that . . . concerns may arise and may affect different class
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`members differently does not compel a finding that individual
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`issues predominate over common ones." Id. at 296. To the
`
`contrary, "we have recognized that a class may be certified
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`notwithstanding the need to adjudicate individual issues so long
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`as the proposed adjudication will be both 'administratively
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`feasible' and 'protective of defendants' Seventh Amendment and due
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`process rights.'" Asacol, 907 F.3d at 52 (quoting Nexium, 777
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`F.3d at 19). So, here, we ask whether there is more than
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`speculation that individual issues of permission may arise and, if
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`so, whether Bais Yaakov has shown that those who gave ACT prior
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`express permission to send advertisements can be culled from the
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`class in a way that is administratively feasible and protective of
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`ACT's due process rights.
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`We start with the fact that some unknown number of the
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`putative class members sent a form to ACT providing a fax number
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`and requesting that ACT send them ACT "publications." Indeed,
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`Bais Yaakov itself both sent such a request and claims to be a
`
`typical member of the classes it seeks to represent. See Fed. R.
`
`Civ. P. 23(a)(3). Further, according to the declaration of an ACT
`
`official, class members routinely provided ACT with their fax
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`number when inquiring about becoming a test center, requesting a
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`High School Code number, seeking information about the dates the
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`test will be administered, or asking for copies of publications.
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`- 18 -
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`At least two of the three faxed documents to which Bais Yaakov
`
`points as advertisements are notices of the exam dates and sign-
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`up deadlines -- i.e., just the sort of information that a school
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`asking for ACT publications would likely expect to receive by way
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`of the fax number it supplied when asking for the documents. The
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`third document, in turn, concerned the opportunity to administer
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`ACT exams. And because the typical class member (e.g., Bais
`
`Yaakov) registered interest in giving such exams, one can easily
`
`see how a request by that school to receive ACT publications would
`
`cover such a document.
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`Nevertheless, as Bais Yaakov points out, the TCPA
`
`requires "express permission." "Express permission" means
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`"[p]ermission that is clearly and unmistakably granted by actions
`
`or words, oral or written." Permission, Black's Law Dictionary
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`(11th ed. 2019); cf. id. (defining "implied permission" as
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`"permission that is inferred from words or actions"). Furthermore,
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`FCC rules (unchallenged by either side) provide that in gauging
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`whether express permission was provided, we consider the
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`understanding of the recipient. In re Rules & Regulations
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`Implementing the Telephone Consumer Protection Act of 1991, 18 FCC
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`Rcd. 14,014, 14,129 (2003) ("Express permission to receive a faxed
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`ad requires that the consumer understand that by providing a fax
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`number, he or she is agreeing to receive faxed advertisements.").
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`So we do not reject the possibility that, notwithstanding the
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`- 19 -
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`
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`strong inference to be drawn from supplying a fax number while
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`requesting a publication, any given school may not have understood
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`its communications to invite ACT to send by fax that which it sent.
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`There is evidence, furthermore, that Bais Yaakov itself did not
`
`understand its request for publications to convey perpetual
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`permission for ACT to send Bais Yaakov any advertisements. After
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`all, Bais Yaakov objected when it received the faxed publications
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`from ACT. And Bais Yaakov had no longstanding relationship with
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`ACT that might have lent further support to the notion that it
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`received by fax what it clearly asked to receive by fax. To the
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`contrary, the record as described by the parties paints a picture
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`of faxes sent to Bais Yaakov out-of-the-blue after years of no
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`contact.
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`There is evidence, though, that other members of the
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`putative class did not share Bais Yaakov's understanding
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`concerning the express requests that they receive ACT
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`publications. Indeed, ACT presented concrete examples of schools
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`that did not share Bais Yaakov's understanding. These examples
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`took the form of declarations from representatives of seventy-
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`eight schools with whom ACT corresponded. The declarants confirmed
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`that their schools provided ACT with fax numbers, and that they
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`frequently requested and received publications from ACT by fax.
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`When shown the three faxed ACT publications alleged by Bais Yaakov
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`to be advertisements, they replied that the information contained
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`- 20 -
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`in the publications was "integral to" the school's ongoing
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`interactions with ACT, and that "ACT would have had permission
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`from the declarant or other school personnel" to send "these types
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`of informational communications using any available type of
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`communication, including facsimile."
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`Bais Yaakov makes no argument that the concrete examples
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`offered by ACT did not exemplify a larger subset of similar class
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`members that could only be identified were one to parse through
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`the circumstances of each school in the putative class. The fact
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`that many schools expressly asked when giving their fax numbers to
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`receive ACT publications likely suggests why Bais Yaakov makes no
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`argument that ACT's examples constitute just "a few unusual class
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`members, who can be picked off by the defendant." Asacol, 907
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`F.3d at 57 (citing Halliburton v. Erica P. Jong Fund, Inc., 573
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`U.S. 258, 276 (2014).
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`Rather, Bais Yaakov argues that ACT would have no
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`plausible defense of consent even in the circumstances presented
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`by the proffered examples. To support that argument, Bais Yaakov
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`points out that the key sentence concerning permission to send the
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`faxes employs the conditional "would have" formulation, rather
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`than stating that ACT did in fact have permission to send the type
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`of information contained in the faxes appended to the complaint.
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`Certainly the syntax could have been clearer. But given the prior
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`communication providing a fax number and asking to receive ACT
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`- 21 -
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`publications, we think that a factfinder could reasonably read the
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`declarations as reflecting a lack of memory about whether the faxes
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`were received, not a doubt about whether they were invited if
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`received. A prior paragraph in each declaration explains that
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`the declarant has been told that ACT might have sent to the
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`recipient the three faxes appended to Bais Yaakov's complaint.
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`Rather than claiming a rather remarkable memory about exactly what
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`was received years ago, each declarant simply points to the faxes
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`appended to Bais Yaakov's complaint and confirms that those faxes
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`were the type of publications the school was requesting to receive
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`by fax, and that ACT "would have had permission" to send them. In
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`short, a factfinder could reasonably read the declarations as
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`conveying the point that "I do not recall if ACT sent these
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`specific faxes, but if it did, it would have had my permission to
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`do so."
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`Bais Yaakov argues that the Seventh Circuit concluded
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`otherwise in construing a recipient's declaration that the
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`recipient "would have given" consent. Physicians Healthsource,
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`Inc. v. A-S Medication Sols., LLC, 950 F.3d 959, 966 (7th Cir.
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`2020) (emphasis omitted). In so holding, it appears that the
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`Seventh Circuit read the condition implied by that statement as
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`"if asked, I would have given consent (but I was never asked)."
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`While it may have been reasonable in the context of that case to
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`read the statements as indicating that the recipients never gave
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`- 22 -
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`permission at all, here the context for at least some class members
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`is markedly different.
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`Many schools were obviously trying to assist their
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`students in taking the ACT test and, in many cases, in serving as
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`test centers. As the schools' representatives explain, they
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`therefore wanted information about "the nature of the test, how
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`scores are used,
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