Say What? Ninth Circuit Says Affirmative Defenses Can’t Stop Class Certification Unless Defendant Proves the Merits of the Defense as to Every Single Class Member
Just when you thought litigating Telephone Consumer Protection Act (TCPA) class actions was as unsafe as it could get for defendants, the Ninth Circuit said, “Not so fast.”
In McKesson v. True Health, two chiropractic practices sought to represent a class of plaintiffs who allegedly received unsolicited faxes containing advertisements in violation of the TCPA. The district court denied class certification under Fed. R. Civ. P. 23(b)(3) on the grounds that consent was the…