Voltage Reverse Class Lawsuit Denied Certification Again

The Federal Court, for a second time, has denied Voltage permission [1] to proceed in its class lawsuit for file-sharing.

Procedural Background

In 2016, Voltage Pictures LL.C. sought to certify a class proceeding for copyright infringement against a class of unidentified internet subscribers alleged to have been found sharing movies online through the BitTorrent file-sharing protocol. To succeed in bringing the class proceeding forward, Voltage had to convince a judge that the requirements of the test for certification of a class action had been met, namely:

(1) the pleadings disclose a reasonable cause of action;

(2) there is an identifiable class of two or more persons;

(3) the claims of the class members raise common questions of law or fact;

(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; 

(5) there is a suitable class representative; and

(6) the plaintiff must propose a workable plan for advancing the litigation and keeping class members informed.

In a 2019 decision, Voltage Pictures et al. v Salna et al., 2019 FCC 1412 [2], Justice Boswell of the Federal Court denied Voltage permission to move forward in its proceeding on all grounds. Voltage appealed to the Federal Court of Appeal, who reversed on all grounds (Salna v. Voltage Pictures, LLC, 2021 FCA 176 [3]). Rather than certifying the proceeding, however, the Court of Appeal remanded the decision back to the Federal Court to address two specific issues:

(1) is the proposed reverse class proceeding the preferable procedure; and

(2) Is Voltage’s litigation plan workable?

The 2023 Re-Hearing

Justice Fothergill’s decision acknowledged that Voltage’s class proceeding was preferable to the alternative - individual actions considered together under the Joinder rules - but found Voltage’s litigation plan continued to be unworkable.