David Eliiot claims Humana called him numerous times despite not being a Humana customer, and after he informed Humana that it had the wrong number. He brought a class action alleging this violated the TCPA. Humana opposed class certification on the grounds that whether individuals had actually consented to repeated calls was not ascertainable on a class-wide basis — pointing to the fact that its own records showing a call had been rejected as “wrong number” was insufficient. The district court certified the class anyway, finding that any individualized inquiries did not predominate, as Humana’s own records and class member affidavits provided an administratively feasible framework for determining class membership.
Humana petitioned the Sixth Circuit for interlocutory review under Rule 26(f), which was denied earlier this week. In its opinion, the Sixth Circuit held that the district court had not abused its discretion, rejecting, among other arguments, Humana’s argument that its own call records were “inadmissible hearsay” and its argument that the district court had certified a fail-safe class. As to whether consent could be established on a classwide basis, the court found the question to be unsettled, but fact-specific, meaning any ruling in this case would not necessarily govern other cases. The court also noted that the district court had expressly stated it would reconsider certification if individual questions came to predominate, and that summary judgment motions were fully briefed.
