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DRI Seeks Supreme Court Review in McKesson v. True Health

  • Published March 06, 2019
    Modified July 09, 2020

CHICAGO ­– (March 2, 2019)— DRI – The Voice of the Defense Bar has filed an amicus brief with the U.S. Supreme Court in the case of McKesson v. True Health.  At issue is a Ninth Circuit ruling that effectively creates a presumption in favor of class certification in Telephone Consumer Protection Act (TCPA) cases, while shifting the burden of proof on class certification from the plaintiff to the defense.  The brief was filed by DRI’s Center for Law and Public Policy.                          

In McKesson v. True Health, two chiropractic providers 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 on the ground that under Fed. R. Civ. P. 23(b)(3), consent was the primary issue to be adjudicated, and defendant had offered a substantial showing that whether class members had provided consent could only be determined individually. 

The Ninth Circuit reversed, finding that consent is an affirmative defense in a TCPA case, and because the defendant would therefore bear the burden of proof on the merits of the consent defense at trial, defendant also bore the burden of proving that consent was an individualized issue and that it predominated over common issues for purposes of class certification. 

Because the defendant had only offered proof of consent as to some class members, the Ninth Circuit concluded that those class members should be excluded from the class but that defendant had failed to carry its burden of proving that consent was an impediment to certification as to all other class members. The defendant petitioned for certiorari because no other circuit has ever held that a defendant bears the burden of proof on any issue relating to class certification. 

DRI agrees that the Ninth Circuit’s ruling effectively creates a presumption in favor of class certification in TCPA cases, while impermissibly shifting the burden of proof on class certification from the plaintiff to the defense. 

This contravenes both Supreme Court precedent and the approach of every other circuit to address the issue. DRI argues that who bears the burden of proof on the merits of an issue at trial has nothing to do with whether the controversy as a whole is appropriate for class adjudication.  On the latter, the case law up until now has been uniform:  the plaintiff bears the burden of proof on all issues pertaining to class certification.

DRI further points out that, in order to defeat class certification, the defendant is effectively forced by this decision to offer exactly the kind of individual-by-individual proof as to each and every class member that class certification is supposed to avoid. This of course is a practical impossibility, such that the ruling effectively alters the substantive law by gutting the defendant’s ability to truly utilize consent as a defense to TCPA liability when the claim is brought on a class basis.

The intolerable consequences of such a drastic change in settled class action law are particularly acute in the context of TCPA class actions, since the TCPA provides for potentially ruinous uncapped statutory damages for even the most minor and most technical violations, whether or not they produce any real injury.

The DRI amicus brief was authored by Scott Burnett Smith and Sarah Osborne of Bradley Arant Boult Cummings LLP (Huntsville, AL) and Michael R. Pennington, Bradley Arant Boult Cummings (Birmingham, AL). They are available for interview or for expert comment through the contact information above.

For the full text of the amicus brief, click here.





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