Last week, the Eighth Circuit weighed in on a hot and unsettled topic: the ascertainability standard for class certification. In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., No. 15-1317, 2016 U.S. App. LEXIS 7992 (8th Cir. May 3, 2016), the plaintiff, a chiropractic center, sought to certify a class of persons who were sent faxes that failed to display a proper opt-out notice by or on behalf of the defendant, Medtox Scientific, in violation of the Telephone Consumer Protection Act (“TCPA”). The district court denied class certification, holding that the class was “not ascertainable, because it does not objectively establish who is included in the class.” Id. at *3.

Medtox, a toxicology lab, contacted pediatricians, family practitioners, health departments and child-focused organizations about its lead-testing capabilities using a fax directory from a health insurance company. The chiropractic center, however, was not on the contact list. Rather, one of its part-time doctors who occasionally required lead testing for patients provided the center’s fax number to the health insurance company, which in turn gave it to Medtox. This was an important fact to Medtox’s argument on ascertainability. As Medtox argued, despite the existence of fax logs showing the fax numbers that were used to send the fax, there is no way to objectively ascertain the class. The TCPA provides that the recipient is the person or entity that actually gets the fax, but the fax log wouldn’t necessarily reflect the actual recipients.

The Eighth Circuit began by describing ascertainability as an “implicit threshold requirement that the members of the proposed class be ‘readily identifiable.’” Id. at *4 (quotation omitted). The court identified two divergent approaches to assessing ascertainability – a “heightened standard” recently established by the Third Circuit in Byrd v. Aaron’s, Inc., 784 F.3d 154 (3d Cir. 2015), and the Seventh Circuit’s approach in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) that rejected a heightened standard because it believed such a standard “gives one factor in the balance absolute priority.” (Mullins found that ascertainability was better addressed by applying the explicit requirements of Rule 23(a) and (b)(3)). The Eighth Circuit recognized that it had not outlined a requirement of ascertainability. Rather than expressly adopt either the Third Circuit or Seventh Circuit approach, it indicated that “this court adheres to a rigorous analysis of the Rule 23 requirements, which includes that a class ‘must be adequately defined and clearly ascertainable.’” Sandusky Wellness, 2016 U.S. App. LEXIS 7992, at *8. In doing so, it noted that it had not addressed ascertainability as a separate, preliminary requirement. Id.

Applying this standard, the Eighth Circuit reversed the denial of class certification, holding that “fax logs showing the numbers that received each fax are objective criteria that make the recipient clearly ascertainable.” Id. at *10-11. As the court found, “[t]he best objective indicator of the ‘recipient’ of a fax is the person who subscribes to the fax number.” Id. at *10. In doing so, the court seemed to downplay the concern that the subscriber of the fax number may not be the “recipient” of the fax. Rather, the plaintiff only needs to identify a log of the fax numbers used to transmit the fax. The Eighth Circuit’s decision lowers the hurdle for plaintiffs to satisfy the ascertainability requirement class actions in that circuit and creates an even bigger divide between the circuits on this issue – one that seemingly may not be resolved by the U.S. Supreme Court in the near future given its recent decision to deny review of the Mullins case.