District Court Grants Plaintiff’s Motion to Certify Class in Part, Refusing to Credit Testimony Regarding Unwritten Consent Policies

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In Vandenberg & Sons Furniture, Inc. v. Alliance Funding Grp., Judge Quist of the District Court for the Western District of Michigan granted in part and denied in part the plaintiff’s motion for class certification arising from alleged violations of the Telephone Consumer Protection Act (TCPA). In its ruling, the court highlighted the importance of maintaining written TCPA policies.

In that case, the plaintiff received one fax from the defendant “offering a [$100,000] pre-approved line of credit” in 2012. In 2015, the plaintiff brought suit on behalf of himself and others, alleging the defendant violated the TCPA by sending the plaintiff a fax without the plaintiff’s prior consent.

Under the TCPA “junk fax” provision, § 47 U.S.C. § 227(b)(1)(C), it is “unlawful to send an unsolicited advertisement via fax unless: (1) the parties have an established business relationship; (2) the recipient granted permission by either providing the fax number to the sender or by making the fax number publicly available; or (3) the unsolicited advertisement contains the requisite opt-out notice.” The main issue in the case was whether individualized issues of consent and the absence of sufficient records should preclude class certification.

The court held that individualized issues of consent did not predominate. It emphasized that Alliance failed to provide evidence of a written policy stating that sales representatives must only send faxes to “potential customers who provided a fax number to a sales representative,” and that no sales representatives employed by Alliance, other than two management employees, were available to testify as to the policy. Therefore, the court concluded that “[b]ased on the lack of records, this Court. . . has difficulty accepting as fact that Alliance had a policy of obtaining consent before sending any fax.” The court emphasized that “[a]llowing Alliance to defeat class certification based solely on the testimony of two management employees regarding an unwritten policy would create a roadmap for future companies to defeat class certification.”

The plaintiff sought certification of two classes. Class A consisted of “[a]ll persons or entities, identified in the WestFax opt-out list for Defendant, who were successfully sent the same or similar fax as Exhibit A to the Complaint from December 3, 2011 to December 3, 2015.” Class B consisted of “[a]ll persons who were successfully sent the same or similar fax as Exhibit A to the Complaint on [various dates].” While the court held that Class B did not meet the Rule 23(b) superiority element, was not ascertainable, and, accordingly, not certifiable, the court held that Class A was ascertainable and that a class action was the “superior form of adjudication.”

Regarding Class B, the court emphasized that without a fax transmission log, there was insufficient objective data to verify information regarding the number of faxes sent. Regarding Class A, the court reasoned that while still lacking a fax transmission log, an opt-out list “contain[ing] [7,435] fax numbers that contacted WestFax” enabled notice to be provided to Class A members, albeit potentially requiring review of thousands of fax recipient affidavits: “Although no circuit court has ever mandated certification of TCPA class where fax logs did not exist, the Court finds that the opt-out list containing fax numbers, the only fax template that was produced, and the WestFax invoices, are sufficient objective data despite the absence of a fax transmission log.”

Therefore, although stating it was a “close call,” the court certified Class A, while denying class certification for Class B.

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