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Gene & Gene, L.L.C. v. Biopay, L.L.C., No. 09-31191

Class Certification Order Reversed

In Gene & Gene, L.L.C. v. Biopay, L.L.C., No. 09-31191, a lawsuit involving unsolicited faxes wherein defendant appealed from the district court's grant of plaintiff's motion to re-certify a class, the court reversed the order where 1) the Court of Appeals' prior order foreclosed the re-litigation of the class certification issue, and the district court erred in considering "new" evidence disclosed during the reopened discovery; and 2) the evidence disclosed on remand was not substantially different from the evidence disclosed before the prior decision, and the "substantially different evidence" exception to the law of the case doctrine did not apply.


As the court wrote:  "In this second interlocutory appeal pursuant to Rule 23(f) of the Federal
Rules of Civil Procedure, BioPay, L.L.C. (BioPay) challenges the district court's grant of Gene & Gene, L.L.C.'s (Gene) motion to re-certify a class. As in the first interlocutory appeal, Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (BioPay I), we REVERSE and REMAND."

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