Court Denies Humana's Appeal of TCPA Class Certification

Sixth Circuit rules that Humana failed to meet the criteria for an immediate appeal under Rule 23(f)

Published on Feb. 9, 2026

Got story updates? Submit your updates here. ›

The U.S. Court of Appeals for the Sixth Circuit has denied Humana, Inc.'s petition for permission to appeal a district court order certifying a class in an action alleging violations of the Telephone Consumer Protection Act (TCPA). The court found that Humana failed to demonstrate that the four factors under Rule 23(f) of the Federal Rules of Civil Procedure warranted an immediate appeal.

Why it matters

This decision upholds the district court's class certification order, allowing the TCPA case against Humana to proceed as a class action. The ruling highlights the high bar companies face in obtaining immediate appellate review of class certification decisions, even in unsettled areas of TCPA law around consent.

The details

Humana had petitioned to appeal the class certification order, arguing that the district court erred in finding that predominance was satisfied even if consent could not be proven on a class-wide basis. Humana also challenged the class definition as creating an impermissible 'fail-safe' class. However, the Sixth Circuit found that Humana failed to demonstrate that the four factors under Rule 23(f) - the likelihood of error in the certification decision, the death-knell effect, the presence of unsettled and fundamental issues, and the posture of the case - warranted immediate appellate review. The court noted that Humana provided no financial data to support its claim of potential undue financial harm, and that the district court had indicated it may revisit class certification if individual consent inquiries threatened to overwhelm common questions.

  • The district court certified the class on February 1, 2026.
  • Humana petitioned the Sixth Circuit for permission to appeal the class certification order on February 15, 2026.

The players

Humana, Inc.

A health insurance company that was the defendant in the TCPA class action lawsuit.

David Elliot

The plaintiff who brought the TCPA class action lawsuit against Humana.

Anya Verkhovskaya

The expert witness who submitted a methodology for ascertaining and notifying potential class members in the TCPA case.

Got photos? Submit your photos here. ›

What they’re saying

“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?”

— Humana, Inc., Defendant

“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)?”

— Humana, Inc., Defendant

What’s next

The district court stated it may reconsider class certification if individual consent inquiries threaten to overwhelm common questions. Humana also still has the opportunity to file a motion for summary judgment, which could potentially end the case.

The takeaway

This decision highlights the high bar companies face in obtaining immediate appellate review of class certification decisions, even in unsettled areas of TCPA law. It underscores the district court's discretion in managing class certification issues and the need for defendants to provide strong evidence of undue financial harm to justify an immediate appeal.