Gene and Gene, LLC v. Biopay, LLC, 541 F.3d 318 (5^th Cir. 2008)

For the plaintiffs in this junk faxes case, the court will require a few more facts about the fax class before it agrees with the District Court that class certification was proper. But why do we care at CAFA Law Blog whether they get certification? Well, subject matter jurisdiction was based on CAFA, of course! 

Gene and Gene, as recipients of unsolicited fax advertisements, filed a class action on behalf of others so detrimentally hurt by wasted paper, ink and time under the Telephone Consumer Protection Act, 47 U.S.C. § 227. The TCPA allows a recipient of an unsolicited fax advertisement to bring an action to enjoin further violations or the TCPA and/or to recover the greater of his actual damages or $500 for each violation – guess which one gets more attention.

The court reminded the parties that subject matter jurisdiction under CAFA would only be present if there was minimal diversity and the aggregate amount in controversy exceeded $5 million. The court decided minimum diversity was present because Gene is domiciled in Louisiana and the fax crazed BioPay is domiciled in Virginia. 

The court next turned to amount in controversy and determined it was met because the TCPA allows for treble damages for willfully or knowingly violating the TCPA. Doing the math: BioPay sent over 4,000 unsolicited faxes. If each were willfully or knowingly done in violation of the TCPA, each fax would cost BioPay $1,500, or $6 million in potential damages.

Having decided subject matter jurisdiction was appropriate, the court quickly overruled the District Court’s class-certification finding that the issue of lack-of-consent needed under the TCPA could not be established via class-wide proof and, thus, the plaintiff’s proposed class did not satisfy the predominance requirement.