In re Humana, Inc.: Rule 23(f) Review Denied Where Consent Disputes, Ascertainability Methodology, and Fail-Safe Allegations Do Not Show Abuse of Discretion

1. Introduction

Case: In re Humana, Inc., No. 25-0502 (6th Cir. Dec. 30, 2025) (Order).
Posture: Humana sought permission under Federal Rule of Civil Procedure 23(f) to appeal a district court order certifying a class in a Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, prerecorded-calls case. Plaintiff David Elliot opposed.

Core disputes framed by Humana:

Whether a TCPA prerecorded-calls class may be certified when “consent” cannot, in Humana’s view, be proven on a classwide basis (a predominance challenge).
Whether the class definition was an impermissible “fail-safe” class because it referenced lack of consent.
Whether plaintiff’s expert’s “reverse-append” methodology for identifying and notifying class members undermined ascertainability and warranted interlocutory review.

The Sixth Circuit denied permission to appeal, emphasizing the exceptional nature of Rule 23(f) review, deference to district-court discretion, and the fact-specific nature of consent and ascertainability disputes in TCPA litigation.

2. Summary of the Opinion

The Sixth Circuit exercised its “unfettered discretion” to deny Humana’s Rule 23(f) petition. Applying the circuit’s established multi-factor approach, the court found:

Humana did not show a sufficient likelihood of success on the merits under abuse-of-discretion review.
The “death-knell” factor was not supported because Humana offered no financial data showing undue settlement pressure beyond the ordinary impact of certification.
Although some issues (e.g., how consent interacts with class treatment; expert “reverse-append” identification) can be unsettled, they were too fact-specific to warrant immediate appellate intervention.
The case posture weighed against review because the district court expressly contemplated revisiting certification if individualized issues later “swamp” common ones, and summary judgment could resolve the case.

Accordingly, the petition was DENIED.

3. Analysis

A. Precedents Cited (and How They Drove the Result)

1) The Sixth Circuit’s Rule 23(f) framework and discretion

In re Delta Air Lines, 310 F.3d 953 (6th Cir. 2002) (per curiam).
This is the organizing precedent. The court reaffirmed that Rule 23(f) appeals are “never to be routine” and that the court uses “broad discretion” guided by four factors: (i) likelihood of success on the merits; (ii) “death-knell”; (iii) novelty/unsettled question; (iv) posture of the case. The Delta Air Lines factors provided the structure for rejecting each of Humana’s asserted grounds for interlocutory review.

2) Standard of review and what qualifies as an abuse of discretion

In re Ford Motor Co., 86 F.4th 723 (6th Cir. 2023) (per curiam).
The court invoked In re Ford Motor Co. to specify what Humana needed to show to win on the “likelihood of success” factor: a “clearly erroneous” factfinding, wrong legal standard, misapplication, or clear error of judgment. That framing mattered because Humana’s arguments largely asked the appellate court to reweigh record evidence (e.g., what “wrong number” notes mean; how many people might have consented), which is difficult to translate into abuse-of-discretion error.

3) Predominance and merits-adjacent disputes at certification

Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455 (2013).
The court used Amgen to restate a key certification principle: predominance asks whether common questions predominate, not whether those questions will ultimately be answered for the class on the merits. That principle undercut Humana’s attempt to convert “consent will be contested” into “predominance necessarily fails.”
Bridging Comtys. Inc. v. Top Flite Fin. Inc., 843 F.3d 1119 (6th Cir. 2016).
This case did heavy lifting. The court emphasized Bridging Communities for two linked propositions: (i) affirmative consent operates as a defense in TCPA cases and can be addressed after certification; and (ii) “a possible defense, standing alone, does not automatically defeat predominance.” The opinion further relied on Bridging Communities to highlight management tools—subclasses or exclusions—if later evidence shows the defense applies to a subset of members.
Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32 (1st Cir. 2003).
Quoted via Bridging Communities, Smilow supplied the doctrinal phrasing the Sixth Circuit endorsed: predominance requires that common issues predominate, “not that all issues be common,” and courts can manage defenses through subclassing or exclusion. This supported the court’s conclusion that Humana’s limited evidence of individualized consent disputes did not compel immediate review.

4) When consent evidence can defeat predominance: distinguishing Sixth Circuit TCPA precedent

Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017).
Humana leaned on Sandusky to argue that consent issues defeat certification and that affidavits are improper. The court distinguished it on its facts:
- In Sandusky, there was substantial record evidence that “several thousand” class members had provided written consent—making individualized consent inquiries central.
- By contrast, Humana offered only thirteen declarations (roughly 0.05% of the putative class) claiming consent despite “wrong number” notes, which the court found insufficient—especially without context about how many declarations Humana attempted to obtain.
- On affidavits, Sandusky involved the lack of objective records proving fax receipt; here, the district court viewed Humana’s records as usable (at least at certification) and contemplated affidavits to determine membership, not to establish liability at notice.
The net effect: Sandusky did not show abuse of discretion by the district court in this case, reducing Humana’s likelihood of success and thus weakening the case for Rule 23(f) review.

5) Conditional certification and “defer merits questions” arguments

Speerly v. General Motors, LLC, 143 F.4th 306 (6th Cir. 2025) (en banc).
Humana argued Speerly categorically bars “conditional certification” pending later “culling.” The Sixth Circuit accepted the general Speerly proposition—district courts must not defer merits questions that bear on commonality/predominance until summary judgment and must be “assured” certification is proper. But the court held Speerly inapposite because it involved 26 statewide subclasses, 59 different state-law claims, and legal variations (e.g., reliance/manifestation elements) that caused individualized issues to predominate. Here, the district court certified a single TCPA class without intra-class state-law variation. This narrowing of Speerly signals that the en banc decision is not a universal weapon against all certification orders that contemplate later refinement.

6) Ascertainability doctrine and evidentiary flexibility at certification

Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016) (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012)).
These cases supplied the Sixth Circuit’s ascertainability formulation: an “administratively feasible” method to determine whether an individual is a class member. The court treated the attack on the “reverse-append” method as heavily record- and case-specific and deferred to the district court’s handling, which had addressed Humana’s expert challenges directly.
Lyngaas v. Curaden Ag, 992 F.3d 412 (6th Cir. 2021).
The court invoked Lyngaas for a practical procedural point: evidence at class certification “need not be admissible at trial.” That mattered because Humana argued its own call records were inadmissible hearsay; the Sixth Circuit treated that as insufficient to show certification error at this stage.

7) Fail-safe class doctrine

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) (citing Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347 (6th Cir.2011)).
The court restated the Sixth Circuit rule: a fail-safe class is impermissible when membership can’t be determined until the merits are decided—effectively including only those “entitled to relief,” letting members avoid being bound by an adverse judgment. Applying that doctrine, the court concluded Humana had it “backwards.” While a class defined only by “did not consent” may raise fail-safe concerns, the district court’s definition excluded current Humana account holders and those who consented on behalf of an account holder; membership therefore was not defined solely by the ultimate merits question of consent.
District-court TCPA examples cited for comparison:
- Sauter v. CVS Pharmacy, Inc., No. 13-CV-846, 2014 WL 1814076 (S.D. Ohio May 7, 2014).
- Carmouche v. A1 Diabetes & Med. Supply, Inc., 586 F. Supp. 3d 795 (W.D. Tenn. 2022).
- Boyer v. Diversified Consultants, Inc., 306 F.R.D. 536 (E.D. Mich. Apr. 20, 2015).
These citations reinforced that fail-safe determinations are definition-dependent and that the district court’s tailored exclusions here made success on Humana’s fail-safe theory unlikely.

8) “Perverse incentive” argument about deficient recordkeeping

Krakauer v. Dish Network, L.L.C., 311 F.R.D. 384 (M.D.N.C. 2015), aff'd, 925 F.3d 643 (4th Cir. 2019).
The Sixth Circuit cited Krakauer for the policy point that denying certification due to a defendant’s poor records can create a “perverse incentive” to keep poor records—rejecting Humana’s attempt to use alleged ambiguity in its own “wrong number” notes as a reason to defeat predominance.
Gibbs v. Stinson, No. 3-CV-676, 2021 WL 4812451 (E.D. Va. Oct. 14, 2021).
Cited for the related principle: courts disfavor arguments that records treated as accurate for business purposes are suddenly too inaccurate to define a class.

9) Conflicting treatment of “reverse-append” experts and claimed circuit split

The court surveyed divergent district-court treatment of Verkhovskaya’s “reverse-append” method:
- Carroll v. SGS Auto. Servs., Inc., No. 16-CV-537, 2020 WL 7024477 (M.D. La. Nov. 30, 2020).
- Hunter v. Time Warner Cable, Inc., 15-CV-6445, 2019 WL 3812063 (S.D.N.Y. Aug. 14, 2019).
- Samson v. United Healthcare Servs. Inc., No. 19-CV-00175, 2023 WL 6793973 (W.D. Wash. Oct. 13, 2023).
- Johnson v. Comodo Grp., Inc., No. 16-CV-4469, 2020 WL 525898 (D.N.J. Jan 31, 2020).
- Mantha v. QuoteWizard.com, LLC, 347 F.R.D. 376 (D. Mass. 2024).
Davis v. Capital One N.A., No. 24-1507, 2025 WL 2445880 (4th Cir. Aug. 26, 2025).
Humana claimed Davis created a split requiring review. The Sixth Circuit rejected that framing because: (i) Davis involved exclusion of Verkhovskaya’s testimony and denial of certification (opposite posture), and (ii) key implementation concessions and competing-expert accuracy findings in Davis were not mirrored in this record. The court treated the “reverse-append” debate as case-specific rather than a clean circuit-wide legal conflict.

10) Posture and the possibility of decertification

Bridge v. Credit One Fin., 294 F. Supp. 3d 1019 (D. Nev. 2018).
The court cited this in connection with the district court’s statement that it would revisit certification if individualized issues later overwhelmed common ones. The citation served a pragmatic function: it underscored that class certification is not immutable and that the district court retained tools to manage emerging individual issues—reducing the need for immediate appellate intervention.

B. Legal Reasoning

1) The court’s gatekeeping role under Rule 23(f)

The Sixth Circuit treated Rule 23(f) as an extraordinary discretionary mechanism, not an automatic “second look” at certification. By foregrounding In re Delta Air Lines and emphasizing that interlocutory review is “never to be routine,” the court signaled that even serious certification disputes are often better addressed through ongoing district-court management (including potential decertification) and eventual final-judgment review.

2) Predominance: consent disputes did not compel interlocutory review

Humana’s predominance theory hinged on consent being individualized. The court’s response was twofold:

Doctrinal: Predominance does not require classwide proof of every element, and defenses do not automatically defeat predominance (Amgen; Bridging Communities).
Record-based: Humana’s showing (thirteen declarations) was too thin to demonstrate that individualized consent issues would predominate—especially where plaintiffs pointed to Humana’s own “wrong number” records as a common evidentiary source.

The court also rejected the notion that Humana could leverage alleged ambiguity or deficiencies in its own records to establish predominance failure, invoking the “perverse incentive” reasoning from Krakauer v. Dish Network, L.L.C..

3) “Conditional certification” after Speerly: distinguishing broad principles from mismatched facts

The Sixth Circuit acknowledged Speerly v. General Motors, LLC as a real constraint on deferring merits issues that bear on Rule 23 requirements. But it refused to extend Speerly to a fundamentally different configuration: one federal statutory claim (TCPA), one class, and no multi-jurisdictional variations in substantive law. The message is that Speerly polices a specific failure mode—certifying despite unresolved merits-linked Rule 23 defects—rather than prohibiting all certification orders that contemplate later administrative sorting.

4) Ascertainability and expert methodology: deference plus flexibility

On ascertainability, the court applied the Sixth Circuit’s “administratively feasible method” standard (Cole v. City of Memphis / Young v. Nationwide Mut. Ins. Co.) and treated the “reverse-append” dispute as fact-dependent. The court emphasized:

The district court had already engaged the reliability arguments and denied the motion to exclude the expert.
Certification-stage evidence need not be trial-admissible (Lyngaas v. Curaden Ag).
The claimed Fourth Circuit “split” via Davis v. Capital One N.A. was not truly comparable due to posture and record differences.

5) Fail-safe class: the court applied Sixth Circuit doctrine narrowly and definition-specifically

Using Young and Randleman, the court restated fail-safe concerns (membership dependent on winning on the merits; asymmetric preclusion). It then held Humana was unlikely to succeed because the class definition was not “defined entirely in terms of consent or lack thereof”; it contained other exclusion criteria (e.g., current account holder status / consent on behalf of an account holder), weakening the “membership turns on liability” critique.

6) Rule 23(f) factors beyond merits: death-knell, novelty, posture

The court methodically rejected the remaining bases for interlocutory appeal:

Death-knell: Under In re Delta Air Lines, a defendant must do more than assert large exposure. Humana provided no financial data and did not show an inability to continue litigating.
Novelty/unsettled question: The court acknowledged disagreement about classwide consent in TCPA cases but deemed it too fact-specific for a broadly useful immediate ruling.
Posture: The district court’s willingness to revisit certification and the possibility of summary judgment made immediate appellate intervention less necessary.

C. Impact

Although styled as a non-merits procedural order, In re Humana, Inc. has practical precedential force in three ways within the Sixth Circuit:

Raises the bar for Rule 23(f) petitions in TCPA cases: Petitioners must do more than identify contested individual issues (like consent) or cite large potential damages. They must connect the dispute to a likely abuse of discretion and support “death-knell” claims with concrete financial context.
Limits overreading of Speerly: The opinion signals that Speerly is not an all-purpose prohibition on certification where some later sorting may occur; the key is whether unresolved merits-linked issues undermine Rule 23 requirements in the particular case configuration.
Encourages district-court management over early appellate correction: By emphasizing decertification tools and the fact-sensitive nature of consent and ascertainability, the court nudges litigants toward developing the record (including expert challenges) and using district-court procedural mechanisms before seeking extraordinary review.

4. Complex Concepts Simplified

Rule 23(f) appeal: A discretionary, interlocutory (mid-case) appeal of a class certification decision. The appellate court can simply decline review—even if the issue is important—much like certiorari.
Predominance (Rule 23(b)(3)): Common questions must outweigh individualized ones. It does not require that every element be proven with identical proof for all class members.
Affirmative defense (consent in TCPA): A defendant’s argument that, even if calls occurred, they were permitted because the recipient consented. The possibility that some people consented does not automatically defeat a class.
Abuse of discretion: A deferential appellate standard. The question is not whether the appellate court would decide differently, but whether the district court made a serious legal or factual mistake.
Ascertainability: Whether there is a workable way to identify who is in the class (administratively feasible membership determination).
“Reverse-append” methodology: A technique to map phone numbers to likely individuals/addresses by cross-referencing internal calling records with carrier and third-party datasets for notice and identification purposes.
Fail-safe class: A class defined so that membership depends on winning the case (e.g., “people the defendant unlawfully called”). If the defendant wins, the “class” evaporates and members are not bound—so courts generally forbid it.
Death-knell: The idea that certification (or denial) effectively forces settlement or ends the case because litigation costs/risks are prohibitive. Courts require evidence, not slogans.

5. Conclusion

In re Humana, Inc. reinforces that Rule 23(f) review in the Sixth Circuit is exceptional and highly deferential to district-court class management. The court declined to intervene where: (i) individualized consent disputes were not shown (on this record) to predominate; (ii) the “reverse-append” ascertainability debate was fact-bound and already addressed by the district court; (iii) the fail-safe challenge misapplied Sixth Circuit doctrine; and (iv) the “death-knell” claim lacked supporting financial detail. The order’s broader significance lies in its restraint: it channels TCPA certification fights toward robust record development in the district court, with decertification and summary judgment as the primary pressure valves rather than immediate appellate review.