624 F.3d 698 (5th Cir. 2010), 09-31191, Gene & Gene, L.L.C. v. BioPay, L.L.C.

Docket Nº:09-31191.
Citation:624 F.3d 698
Opinion Judge:EDITH BROWN CLEMENT, Circuit Judge:
Party Name:GENE & GENE, L.L.C., Individually and as Representative of the Class, Plaintiff-Appellee, v. BIOPAY, L.L.C., Defendant-Appellant.
Attorney:John Powers Wolff, III, Christopher Keith Jones, Keogh, Cox & Wilson, Ltd., Philip Bohrer (argued), Bohrer Law Firm, Keith D. Jones, Baton Rouge, LA, for Plaintiff-Appellee. David Boies Sharpe (argued), Miles Channing Thomas, Scott R. Wheaton, Jr., Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New ...
Judge Panel:Before CLEMENT, SOUTHWICK and HAYNES, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge, concurring:
Case Date:October 22, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 698

624 F.3d 698 (5th Cir. 2010)

GENE & GENE, L.L.C., Individually and as Representative of the Class, Plaintiff-Appellee,

v.

BIOPAY, L.L.C., Defendant-Appellant.

No. 09-31191.

United States Court of Appeals, Fifth Circuit.

October 22, 2010

Page 699

[Copyrighted Material Omitted]

Page 700

John Powers Wolff, III, Christopher Keith Jones, Keogh, Cox & Wilson, Ltd., Philip Bohrer (argued), Bohrer Law Firm, Keith D. Jones, Baton Rouge, LA, for Plaintiff-Appellee.

David Boies Sharpe (argued), Miles Channing Thomas, Scott R. Wheaton, Jr., Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before CLEMENT, SOUTHWICK and HAYNES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this second interlocutory appeal pursuant to Rule 23(f) of the Federal Rules of Civil Procedure, BioPay, L.L.C. (BioPay) challenges the district court's grant of Gene & Gene, L.L.C.'s (Gene) motion to re-certify a class. As in the first interlocutory appeal, Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir.2008) ( BioPay I ), we REVERSE and REMAND.

I. BACKGROUND

The Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 et seq., prohibits sending unsolicited advertisements from one fax machine to another. Id. at § 227(b)(1)(C). Between 2001 and 2005, BioPay used a third-party contractor to send over 4000 fax messages advertising its services to potential clients in Louisiana. Gene is the owner of Marcello's Wine Market, a business that allegedly received a single, unsolicited fax from BioPay. Gene filed this class-action suit against BioPay alleging that BioPay violated the TCPA by sending unsolicited faxes to Gene and an unidentified number of class members. After discovery, Gene moved for class certification, proposing to define the class as:

All recipients of unsolicited telefacsimile messages and/or advertisements within the State of Louisiana which were transmitted and/or initiated by or on behalf of BIOPAY, L.L.C., between the dates of January 21, 2001, and through the present.

The named Class shall not include any recipients from whom the Defendant has received the prior express invitation or permission to receive the telefacsimile advertisements.

BioPay I, 541 F.3d at 323 n. 5. The district court certified the class, determining that it met the requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. Gene & Gene, LLC v. Biopay, LLC, 240 F.R.D. 239, 241-46 (M.D.La.2006). BioPay brought an interlocutory appeal under Rule 23(f) and we " reverse[d] the district court's certification of the class and remand[ed] this case for further proceedings not inconsistent with this opinion," holding that " the determinative question of whether consent can be established via class-wide proof must, given the particular facts of this case, be answered in the negative." BioPay I, 541 F.3d at 329.

On remand, Gene immediately moved to reopen discovery. BioPay opposed the motion. The district court referred the matter to a magistrate judge, who reopened discovery " on the limited issue of class certification ...." BioPay appealed the magistrate judge's order to the district judge; BioPay also alternatively requested that the district court stay the proceedings and certify the question of whether

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BioPay I intended " to allow plaintiff a second bite at the class-certification apple" for immediate appeal to this court under 28 U.S.C. § 1292(b). The district court affirmed the magistrate judge's decision and declined to certify the question for interlocutory appeal. Gene & Gene, L.L.C. v. Biopay, L.L.C., No. 05-121-JJB, 2008 U.S. Dist. LEXIS 97404, at *2 (M.D.La. Nov.21, 2008).

Gene then issued additional discovery requests. Specifically, Gene requested the electronic production of a FileMaker Pro database1 in its native format and BioPay complied. BioPay had previously produced a Microsoft Excel report exported by the FileMaker Pro program, but not the database itself. The FileMaker Pro database included a field not contained in the Excel report entitled " Sales Notes." Gene & Gene, LLC v. BioPay, LLC, No. 05-121-JJB, 2009 WL 6598001, *4, 2009 U.S. Dist. LEXIS 128256, at *14-15 (M.D.La. Nov. 10, 2009). Notably, the district court found that although the Excel report did not include the " Sales Notes" field, it did contain the " ‘ Fax Permission’ field, a field that appears every bit as important as the neglected field." Id. *5, 2009 U.S. Dist. LEXIS 128256, at *15-16. In addition to the Excel report, BioPay had previously produced selected printed screenshots from the FileMaker Pro program. The screenshots include the FileMaker Pro report for Marcello's Wine Market and show the " Sales Notes" field and its associated comments. After obtaining the FileMaker Pro database, Gene found it now had the " ability to easily generate a list of all [BioPay contacts] who: (1) do not have the Fax Permission box checked, (2) have no comments or entries in the Sales Notes field, and (3) whose information was obtained solely from a purchased list, among other search criteria or source information."

In BioPay I, we framed the critical substantive issue as " whether BioPay's fax advertisements were transmitted without the prior express invitation or permission of each recipient." BioPay I, 541 F.3d at 327. In its decision to re-certify the class, the district court agreed with Gene that the FileMaker Pro database creates a common method of establishing the issue of consent. Gene & Gene, 2009 WL 6598001, at *3, 2009 U.S. Dist. LEXIS 128256, at *11. Finding that " the unique facts of the Database create common questions of consent," the district court held that common issues predominated individual questions under Rule 23(b)(2) and ultimately re-certified the class as " contacts that BioPay...

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