Ninth Circuit Clarifies Standards for Certifying a Class and Determining Treble Damages Under TCPA

Last week, the Ninth Circuit in True Health Chiropractic, Inc. v. McKesson Corp. (True Health II), No. 22-15710 (9th Cir. Oct. 25, 2023), affirmed the Northern District of California’s earlier ruling in True Health Chiropractic Inc. v. McKesson Corp., 13-cv-02219 (N.D. Cal. Apr. 27, 2022), which clarified the standards for certifying classes under the TCPA and determining whether a violation of the TCPA is sufficiently “willful and knowing” to warrant treble damages.

In True Health, plaintiffs received 13 faxes from defendant advertising and offering rebates for medical billing software.  Plaintiffs attempted to certify a class and asked for treble damages, alleging that defendant “willfully and knowingly” violated the TCPA when it sent the faxes.  In response, defendant argued that plaintiffs had consented to receiving the faxes because they filled out optional registration forms giving their contact information and had authorized the transmission of “certain computer and software usage information” by signing an end user license agreement (“EULA”).  True Health, No. 22-15710 at 4.  Plaintiffs had filled out both documents when purchasing other products from defendant.