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True Health Chiropractic, Inc. v. McKesson Corp.

United States Court of Appeals for the Ninth Circuit

October 17, 2017, Argued and Submitted, San Francisco, California; July 17, 2018, Filed

No. 16-17123


 [*925]  W. FLETCHER, Circuit Judge:

Appellants True Health Chiropractic and McLaughlin Chiropractic ("True Health") seek to represent a class of plaintiffs who allegedly received unsolicited  [*926]  faxed advertisements from appellees McKesson Corporation and McKesson Technologies, Inc. ("McKesson") between September 2009 and May 2010, in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"). The district court denied class certification on the ground that individual issues related to McKesson's affirmative defenses would predominate over issues common to the class. See Fed. R. Civ. P. 23(b)(3). We granted True Health's request for permission to appeal the order pursuant to Federal Rule of Civil Procedure 23(f). We affirm in part, reverse in part, and remand.

I. Background

A. True Health's TCPA Claim

] The TCPA forbids certain unsolicited advertisements sent via phone or facsimile ("fax"). 47 U.S.C. § 227(b)(1). In enacting [**4]  the TCPA, "Congress intended to remedy a number of problems associated with junk faxes, including the cost of paper and ink, the difficulty of the recipient's telephone line being tied up, and the stress on switchboard systems." Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 633 (6th Cir. 2015). The TCPA makes it unlawful to send "unsolicited advertisement[s]" via fax machine. 47 U.S.C. § 227(b)(1)(C). An advertisement is unsolicited if it includes "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." Id. § 227(a)(5). But unsolicited advertisements may be sent if (1) the sender and recipient have "an established business relationship," (2) the recipient voluntarily provided his or her contact information to the sender either directly or indirectly through "a directory, advertisement, or site on the Internet," and (3) the "unsolicited advertisement contains" an opt-out notice meeting certain statutory requirements. Id. § 227(b)(1)(C)(i)-(iii). In 2006, the Federal Communications Commission ("FCC") promulgated a regulation requiring that companies include opt-out notices in solicited as well as unsolicited advertisements (the "Solicited Fax [**5]  Rule"). 47 C.F.R. § 64.1200(a)(4)(iv). Eleven years later, the D.C. Circuit held the Solicited Fax Rule invalid. See Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017).

True Health's Second Amended Complaint ("SAC") alleges that McKesson sent to named plaintiffs and other putative class members unsolicited fax advertisements without their prior express permission or invitation, and without opt-out notices, in violation of 47 U.S.C. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4)(iv). According to the SAC, McKesson sent the faxes at issue after having received a May 9, 2008, citation from the FCC warning it against sending unsolicited advertising by fax. The citation stated, "It has come to our attention that your company . . . apparently sent one or more unsolicited advertisements to telephone facsimile machines in violation of Section 227(b)(1)(C) of the [TCPA]." In its answer to the SAC, McKesson alleged that True Health and other putative class members in various ways gave McKesson "prior express invitation or permission" to send the faxes. 47 U.S.C. § 227(a)(5). For ease of reference, we will refer to this as McKesson's "consent defenses."

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896 F.3d 923 *; 2018 U.S. App. LEXIS 19641 **; 101 Fed. R. Serv. 3d (Callaghan) 501; 2018 Comm. Reg. (P & F) 80; 2018 WL 3431723

TRUE HEALTH CHIROPRACTIC, INC.; MCLAUGHLIN CHIROPRACTIC ASSOCIATES, INC., individually and as representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. MCKESSON CORPORATION; MCKESSON TECHNOLOGIES, INC., Defendants-Appellees.

Subsequent History: As Corrected July 19, 2018.

Rehearing denied by, Rehearing, en banc, denied by True Health Chiropractic, Inc. v. McKesson Corp., 2018 U.S. App. LEXIS 24803 (9th Cir. Cal., Aug. 30, 2018)

US Supreme Court certiorari denied by McKesson Corp. v. True Health Chiropractic, 2019 U.S. LEXIS 4267 (U.S., June 24, 2019)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 4:13-cv-02219-HSG. Haywood S. Gilliam, Jr., District Judge, Presiding.

True Health Chiropractic, Inc. v. McKesson Corp., 2016 U.S. Dist. LEXIS 111657 (N.D. Cal., Aug. 22, 2016)

Disposition: AFFIRMED in part, REVERSED in part, and REMANDED.


faxes, predominance, Solicited, certification, subclasses, advertisements, unsolicited, customers, ascertainability, invitation, recipient, opt-out, notice, registration, invalid

Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Civil Procedure, Special Proceedings, Class Actions, Appellate Review, Appeals, Reviewability of Lower Court Decisions, Adverse Determinations, Certification of Classes, Prerequisites for Class Action, Predominance, Responses, Defenses, Demurrers & Objections, Affirmative Defenses, Evidence, Burdens of Proof, Allocation