The Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), prohibits the transmission of “an unsolicited fax advertisement.”  Rosen Family Chiropractic (“Rosen”) filed suit against Chi-Town Pizza on Div. St. (“Chi-Town Pizza”) in the Northern District of Illinois, alleging that he had received an unsolicited fax, and sought to represent a class of 106 similarly situated individuals who had allegedly received approximately 3,000 similar faxes.  On February 14, 2015, the District Court denied Rosen’s motion for class certification.  Rosen Family Chiropractic v. Chi-Town Pizza on Div. St., No. 11 C 6753, 2015 U.S. Dist. LEXIS 18366 (Feb. 14, 2015).

In denying class certification, the District Court held that Rosen’s claim was atypical of putative class members as the fax that Rosen had received was different than the class members who were later identified on a separate fax transmission log.  Because the fax Rosen received was different than those of the putative class members, and because Chi-Town Pizza’s liability defense was different with respect to the fax that Rosen received (which Chi-Town Pizza argued did not promote its services), the District Court concluded that “the atypicality of [Rosen’s] claim impairs his ability to represent a class” under Fed. R. Civ. P. 23(a)(3) and (a)(4).

The District Court also held that Rosen had not proven numerosity or the existence of an ascertainable class needed to obtain class certification.  While Rosen alleged that he had received a fax from Chi-Town Pizza, its telephone number was not on the fax transmission log for which Rosen sought to identify putative class members.  The District Court rejected Rosen’s claim that class members were therefore identifiable, concluding:

[T]he absence of Rosen’s fax number from the log he uses to identify class members means that the log, in fact, does not identify the members of the class.  For if Rosen is to be considered a class member despite his number’s absence from the log, the log tells us little about what other absent recipients are nevertheless class members, rendering the class indefinite.

Accordingly, the District Court denied class certification.  Rosen also moved to amend his class definition in an attempt to cure the defects in the proposed class, but the District Court denied Rosen’s motion to amend on the grounds that the proposed amended definition still did not cure the defects which warranted denial of class certification.