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Class Decertified in TCPA Junk Fax Case

Issue of Ascertainability Blocks Plaintiff From Proceeding On Class Basis

An Eastern District of Missouri court has decertified a class of junk fax recipients because there was no objective criteria to determine class membership.  The St. Louis Heart Center Inc. (“Heart Center”) brought an action against the Vein Centers for Excellence, Inc. (“Veni Centers”), asserting that they received unwanted faxed advertisements in violation of the Telephone Consumer Protection Act (TCPA).  The case was brought as a class action, and the court initially certified a class of all persons or entities that were sent one or more faxes from Vein Centers in violation of the TCPA between January 15, 2008 and September 15, 2009.  The district court, relying on an Eighth Circuit decision in a separate case that came out subsequent to the initial class certification ruling, has now determined the class to be unascertainable.

The court also dismissed Vein Centers’ motion for summary judgment, finding that a material issue of fact exists with regard to the plaintiff’s alleged receipt of the infringing faxes. The court stated that although the evidence lacks specificity with regard to the recipients of the faxes, that it clearly shows that Vein Centers sent unsolicited fax advertisements in violation of the TCPA. It ordered the matter to proceed to trial with the Heart Center as the sole plaintiff.

Citing the recent case, McKeage v. TMBC, LLC, 847 F.3d. 992 (8th Cir. 2017), the court determined that the plaintiff had no method of determining who actually received an unsolicited fax.  Since there was no way to identify potential members of the class and whether those individuals were sent a junk fax by Vein Centers, the class was not ascertainable, and therefore fatally deficient.  “In addition,” wrote the court, “with no common evidence available to apply on a classwide basis, the class lacks commonality and predominance.”

TAKEAWAY: This case indicates that the requirement of ascertainability in junk fax class actions cases requires an objective criteria that can determine the status of potential class members. Here, the only means by which potential class members could be vetted was through individual testimony, which would have been incredibly time consuming to the point of infeasibility.  Absent objective criteria, like a fax log showing successfully received (not just sent) faxes, courts may deem the class to be unascertainable.