Sixth Circuit Vacates Denial of Class Certification in Blast Fax Case

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In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.

Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).

In denying Sandusky Wellness’s motion for class certification, the district court pointed out that the TCPA does not prohibit all faxing of advertisements. “Rather, it only prohibits the sending of an ‘unsolicited advertisement’ unless certain conditions apply, such as ‘the unsolicited advertisement is from a sender with an established business relationship with the recipient.” District Court Opinion at 4 (quoting 47 U.S.C. § 227(b)(1)(C)(i)). Because the defendant testified that some of the fax recipients had a prior business relationship with Wagner, the district court found that the proposed class failed to meet the commonality requirement of Federal Rule of Civil Procedure 23(a)(2).

Sandusky Wellness filed a petition for permission to appeal the district court’s denial of class certification.

The Sixth Circuit declined to engage in a full review, noting that the district court based its decision solely on the lack of commonality. In a two-page order, the Sixth Circuit pointed out that the district court failed to consider “whether the facsimiles transmitted by defendants contained opt-out notices or whether those opt-out notices were adequate. If the notices were absent or inadequate, commonality might be found.” Order at 1-2. Because the “district court’s failure to address the impact of an absent or inadequate opt-out notice is critical to the continued viability of the underlying suit” and the district court did not examine any of the other requisite factors under Rule 23, it was premature for the Sixth Circuit to perform a full review.

The court thus vacated the district court order and remanded the case for further proceedings.

 

Topics:  Advertising, Appeals, Class Action, Class Certification, TCPA, Unsolicited Faxes

Published In: Civil Procedure Updates, Communications & Media Updates, Consumer Protection Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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