In re: Humana, Inc.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0358p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: HUMANA, INC.,
Petitioner.
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No. 25-0502
On Petition for Permission to Appeal.
United States District Court for the Western District of Kentucky at Louisville;
No. 3:22-cv-00329—Rebecca Grady Jennings, District Judge.
Decided and Filed: December 30, 2025
Before: BATCHELDER, STRANCH, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR PERMISSION TO APPEAL: Michael P. Abate, Burt A. (Chuck)
Stinson, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky, K. Cassandra
Carter, DINSMORE & SHOHL LLP, Cincinnati, for Petitioner. ON RESPONSE: James S.
Wertheim, Michael Hartmere, Brittany Clark, THE HQ FIRM, P.C., West Jordan, Utah, for
Respondent.
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ORDER
_________________
Defendant Humana, Inc. petitions for permission to appeal a district court order certifying
a class in this action alleging violations of the Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227. Plaintiff David Elliot opposes the petition.
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Federal Rule of Civil Procedure 23(f) authorizes circuit courts to “permit an appeal from
an order granting or denying class-action certification.” We have “unfettered discretion whether
to permit the appeal, akin to the discretion exercised by the Supreme Court in acting on a petition
for certiorari.” Fed. R. Civ. P. 23(f) advisory committee notes to 1998 amendment. Still, “the
Rule 23(f) appeal is never to be routine.” In re Delta Air Lines, 310 F.3d 953, 959 (6th Cir.
2002) (per curiam). “[W]e eschew any hard-and-fast test in favor of a broad discretion to
evaluate relevant factors that weigh in favor of or against an interlocutory appeal.” Id.
Four factors guide our consideration of a Rule 23(f) petition. See id. at 960. First, “the
likelihood of the petitioner’s success on the merits is a factor in any request for a Rule 23(f)
appeal.” Id. “[I]n examining a petitioner’s likelihood of succeeding on the merits of an
appeal, . . . the standard of review is whether the district court committed an abuse of discretion.”
Id. “A district court abuses its discretion when it relies on a clearly erroneous factual
determination, applies the wrong legal standard, misapplies the correct one, or makes a clear
error of judgment.” In re Ford Motor Co., 86 F.4th 723, 727 (6th Cir. 2023) (per curiam).
Second, “[t]he ‘death-knell’ factor . . . recogni[zes] that the costs of continuing litigation for
either a plaintiff or defendant may present such a barrier that later review is hampered.” In re
Delta Air Lines, 310 F.3d at 960. “[T]he discussion of this factor must go beyond a general
assertion.” Id. Third, “[t]he case that raises a novel or unsettled question may . . . be a candidate
for interlocutory review.” Id. Fourth, “the posture of the case as it is pending before the district
court is of relevance.” Id.
Humana frames its appeal as two questions: “Can a district court certify a class under 47
U.S.C. § 227(b) where the evidence shows that ‘consent’ cannot be proved on a class-wide
basis?”; and “Did the district court create an impermissible fail-safe class when it defined the
class to include only those who did not ‘consent’ to receive prerecorded calls under 47 U.S.C. §
227(b)?”
Although the issue of class-wide consent can go to several of the Rule 23 factors,
Humana appears to raise arguments only as to predominance. This factor “requires a showing
that questions common to the class predominate, not that those questions will be answered, on
the merits, in favor of the class.” Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455,

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459 (2013) (emphasis omitted). While common questions must be proved through evidence
common to the class, “plaintiffs seeking class certification need not prove that each element of a
claim can be established by classwide proof: What the rule does require is that common
questions predominate over any questions affecting only individual [class] members.” Bridging
Comtys. Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016) (citation modified)
(emphasis omitted).
Humana has not shown that the district court abused its discretion in finding that
predominance is satisfied even if the issue of consent cannot be determined on a class-wide
basis. First, Plaintiffs argue that a lack of consent can be easily ascertained from Humana’s
records indicating that the potential class member told Humana it had reached the wrong
number. Humana argues that a “wrong number” call note does not indicate a lack of consent
because the note can mean numerous things, and it adds that thirteen people with “wrong
number” notes provided declarations stating that they had actually consented to the calls. But
Humana’s argument that its own record-keeping is deficient or misleading is unavailing. See,
e.g., Krakauer v. Dish Network, L.L.C., 311 F.R.D. 384, 393 (M.D.N.C. 2015) (“If the Court
were to deny certification because Dish does not keep an accurate list . . . and Dish itself cannot
identify which individuals on the list actually requested not to be called, it would create the
perverse incentive for entities to keep poor records.”), aff’d, 925 F.3d 643 (4th Cir. 2019); Gibbs
v. Stinson, No. 3-CV-676, 2021 WL 4812451, at *12 (E.D. Va. Oct. 14, 2021) (“Courts do not
look favorably upon the argument that records a defendant treats as accurate for business
purposes are not accurate enough to define a class.” (citation modified)). Further, Humana offers
only thirteen declarations as evidence that individual questions of consent will predominate, but
without knowing how many declarations it sought, that number alone—representing 0.05% of
the potential class members—does not raise predominance concerns.
Two of our cases support the district court’s conclusion. In Sandusky Wellness Center,
LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017), an action alleging that
unsolicited fax advertisements violated the TCPA, we held that the district court did not abuse its
discretion in concluding that individual issues of consent predominated, precluding the
certification of a Rule 23(b)(3) class. Id. at 467–70. There was evidence in the record that

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No. 25-0502 In re Humana, Inc. Page 4
several thousand putative class members had been prior customers of the sender of the faxes and
had provided written consent to receive the fax advertisements. We distinguished the facts of the
case from others where there was no evidence of consent, but merely the possibility that
individual class members might have consented. Id. at 469.
In Bridging Communities, we recognized that affirmative consent is a defense in TCPA
cases that can be raised after certification, and reiterated “that a possible defense, standing alone,
does not automatically defeat predominance.” 843 F.3d at 1125. And “[e]ven where defendants
point to some evidence that a defense will indeed apply to some class members, . . . courts
routinely grant certification because ‘Rule 23(b)(3) requires merely that common issues
predominate, not that all issues be common to the class.’” Id. at 1126 (quoting Smilow v. Sw.
Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003)). Moreover, “if evidence later shows that
a ‘defense is likely to bar claims against at least some class members, then a court has available
adequate procedural mechanisms. For example, it can place class members with potentially
barred claims in a separate subclass, or exclude them from the class altogether.’” Id. at 1126
(quoting Smilow, 323 F.3d at 39–40).
Humana’s reliance on our recent decision in Speerly v. General Motors, LLC, 143 F.4th
306 (6th Cir. 2025) (en banc), is likewise misplaced. Specifically, Humana argues that Speerly
announced a categorical prohibition on conditional certification—and that the district court, here,
violated that prohibition by certifying a class “based on preliminary data showing its potential
membership, with plans to later ‘cull the class members’ who, based on individualized evidence,
turn out not to have been harmed.” Humana’s First Rule 28(j) Letter, ECF 11, at 1 (quoting
Speerly, 143 F.4th at 329). Humana’s characterization of Speerly is correct, insofar as we
explained that a district court “must not defer merits questions bearing on commonality and
predominance until summary judgment” because, under Rule 23, a court must “refuse
certification until it is assured that certification is proper.” Speerly, 143 F.4th at 317. However,
Humana’s attempted application of Speerly to this case is unpersuasive—as the facts (and
reasoning) on which our holding in Speerly relied render that case inapposite. In Speerly, we
vacated and remanded after the district court certified 26 state-wide subclasses that were
bringing a total of 59 state law claims under various consumer protection statutes, on behalf of

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roughly 800,000 buyers of cars with defective transmissions. There, we found that the district
court had erred in certifying the class because differences across the various state laws meant
that individualized issues predominated over common ones as they related to proving elements
of the various claims. Id. at 333 (finding “common questions do not predominate in the state
consumer protection statutes that require reliance or defect-manifestation”). The district court
did not similarly abuse its discretion here in certifying a single class under the TCPA, where no
intra-class variations exist.
Finally, Humana argues that the district court abused its discretion by concluding that
lack of consent could be established by asking potential class members to submit affidavits as to
whether they consented to receive calls from Humana. Humana argues that the district court
intends to improperly use affidavits to establish its liability and to improperly do so at the
notification stage. Not so. The district court indicated multiple times that affidavits would be
used to determine class membership. Humana also argues that we have rejected the use of
affidavits to determine class membership, citing Sandusky. But in that case, there were no
objective records to determine whether potential class members had received a fax from the
defendant. 863 F.3d at 471–72. Humana argues that Elliot has not provided such an objective
list, and that its call records are inadmissible hearsay. But evidence at the class certification
stage need not be admissible at trial, and Humana does not argue that there is no way to extract
objective data from its records. Lyngaas v. Curaden Ag, 992 F.3d 412, 428–29 (6th Cir. 2021).
And to the extent Humana argues that affidavits are unreliable or too burdensome to establish
consent, its argument is undercut by its own use of declarations to show that thirteen class
members did consent, implying that the question can be answered through a simple affidavit or
declaration. Humana does raise valid concerns that individual issues regarding consent may
ultimately overwhelm the common issues. But the district court acknowledged those issues and,
as discussed below, indicated that it would reconsider certification if Humana’s concerns
manifest.

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Humana next attacks the underlying method that Elliot’s expert, Anya Verkhovskaya,
submitted for ascertaining and notifying potential class members. Ascertainability requires an
“administratively feasible [method] for the court to determine whether a particular individual is a
member.” Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (quoting Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)). Courts have disagreed on whether
Verkhovskaya’s “reverse-append” methodology—which cross-references Humana’s records
with telephone carrier data and third-party data processors—is reliable for notification purposes,
including where, as here, her methodology failed to identify the named plaintiff. See, e.g.,
Carroll v. SGS Auto. Servs., Inc., No. 16-CV-537, 2020 WL 7024477, at *5 (M.D. La. Nov. 30,
2020) (excluding Verkhovskaya’s testimony because the reverse-append methodology was
unreliable); Hunter v. Time Warner Cable, Inc., 15-CV-6445, 2019 WL 3812063, at *11
(S.D.N.Y. Aug. 14, 2019) (collecting cases where the methodology was rejected); but see
Samson v. United Healthcare Servs. Inc., No. 19-CV-00175, 2023 WL 6793973, at *9–10 (W.D.
Wash. Oct. 13, 2023) (finding Verkhovskaya’s methodology sufficient at the class certification
stage); Johnson v. Comodo Grp., Inc., No. 16-CV-4469, 2020 WL 525898, at *7, 9 (D.N.J. Jan
31, 2020) (collecting cases where the reverse-append proceed was successfully used in TCPA
cases); Mantha v. QuoteWizard.com, LLC, 347 F.R.D. 376, 386–87 (D. Mass. 2024) (finding that
failure to identify the named plaintiff was “irrelevant” based on the facts of that case). The
district court addressed all of Humana’s arguments in its order denying its motion to exclude
Verkhovskaya’s expert testimony. And, as the district court acknowledged, the conflicting
treatment of Verkhovskaya’s methodology appears to depend on the facts and records available
in each case.
Humana argues that if we do not grant review, there may be a circuit split over the
application of Verkhovskaya’s methodology, citing the Fourth Circuit’s recent decision in Davis
v. Capital One N.A., No. 24-1507, 2025 WL 2445880 (4th Cir. Aug. 26, 2025). But key
differences render Davis inapposite. First, the district court in Davis granted the defendant’s
motion to exclude Verkhovskaya’s testimony because it was unreliable and it denied class
certification, so the Fourth Circuit reviewed those decisions for an abuse of discretion. Id. at *1.
The opposite is true here, and Humana does not address the effect of the posture of this case on
our deference to the district court’s decisions here. Further, in Davis, Verkhovskaya conceded

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that the proposed methodology was “never fully implemented,” including, for example, that the
reverse history append “step” was “forwent entirely.” Id. at *4. There, the defendant’s
competing expert had also shown that Verkhovskaya’s methodology was only twenty-five
percent accurate in identifying non-customers from a list of phone numbers. See id. at *2. The
same cannot be said here. Humana offers only thirteen instances of potential class members who
would be excluded. Thus, Davis, which is not binding on this court, also does not control the
outcome here.
Humana incorrectly states that the district court created a fail-safe class when it modified
the class definition to exclude those who consented to receive calls on behalf of a Humana
account holder. “[A] class definition is impermissible where it is a ‘fail-safe’ class, that is, a
class that cannot be defined until the case is resolved on its merits.” Young, 693 F.3d at
538 (citing Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 352 (6th Cir.2011)). A
“fail-safe” class “includes only those who are entitled to relief.” Id. “Such a class is prohibited
because it would allow putative class members to seek a remedy but not be bound by an adverse
judgment—either those ‘class members win or, by virtue of losing, they are not in the class’ and
are not bound.” Id. (quoting Randleman, 646 F.3d at 352).
Humana has the standard backwards. A fail-safe class would include only recipients who
did not consent to receive calls—because consent is an element of the TCPA claim, membership
depends on proving liability. Here, the class definition excludes individuals who are current
account holders of Humana, or persons who consented to receiving calls on the account holder’s
behalf, meaning that the definition is not defined entirely in terms of consent or lack thereof. For
example, courts within this circuit have rejected classes as fail-safe under the TCPA, but
generally where the class was defined only to include those who did not give prior express
consent. See Sauter v. CVS Pharmacy, Inc., No. 13-CV-846, 2014 WL 1814076, at *8 (S.D.
Ohio May 7, 2014) (striking class allegations of a TCPA class consisting of those “who did not
provide prior express consent for” prerecorded calls); cf. Carmouche v. A1 Diabetes & Med.
Supply, Inc., 586 F. Supp. 3d 795, 806 (W.D. Tenn. 2022) (denying a motion to strike a class
consisting of those who received prerecorded calls but were not customers of the caller); but see
Boyer v. Diversified Consultants, Inc., 306 F.R.D. 536, 539 (E.D. Mich. Apr. 20, 2015) (striking

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class allegations for a class consisting of those “who did not provide [their] phone number[s]”
but nevertheless received prerecorded calls). Because the district court did not create a fail-safe
class, Humana is not likely to succeed on this argument. The remaining factors likewise do not
support review.
The “death-knell” factor requires consideration of whether “the costs of continuing
litigation for either a plaintiff or defendant may present such a barrier that later review is
hampered.” Delta Air Lines, 310 F.3d at 960. The “undue pressure” to settle should be more
than “the impact of the class certification alone.” Id. at 961. In support, “a defendant . . . should
provide the court insight into potential expenses and liabilities.” Id. at 960.
Humana does not submit any financial data to support its claim of potential financial
harm. It states that Plaintiffs seek “hundreds of millions of dollars in damages,” but provides no
indication of its own net worth or assets. Instead, it cites other TCPA class action suits where the
parties settled as evidence that it faces undue pressure to settle. Humana has not argued that it
cannot or will not continue to defend this action if its petition to appeal is not granted. And it
still may evade liability entirely if its motion for summary judgment is granted. Thus, the death-
knell factor does not support an immediate appeal.
Humana’s only unsettled question does not merit review at this stage of the litigation.
Courts have disagreed on whether consent can be established on a class-wide basis in a TCPA
case. It does not appear, however, that there is a one-size-fits-all approach to that determination
because it is so fact-specific. Thus, although this question is unsettled, any ruling from this court
would not necessarily provide applicable guidance for other TCPA cases where consent is an
issue.
The posture of the case also weighs against granting the petition. The district court stated
multiple times that it might reconsider class certification. For example, in certifying the class, it
acknowledged that if individualized inquiries into consent later “threaten[ed] to swamp common
questions,” or other grounds for decertification arose, it would address those issues at that time.
Bridge v. Credit One Fin., 294 F. Supp. 3d 1019, 1038 (D. Nev. 2018). Additionally, once the

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proceedings below are no longer stayed, the district court can adjudicate Humana’s motion for
summary judgment, which may end the case.
Accordingly, the petition for permission to appeal is DENIED.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens, Clerk

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