The Sixth Circuit Court of Appeals affirmed class certification in a case brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq.  Pennsylvania-based distributor Lake City Industrial Products engaged Business to Business Solutions (B2B), a “fax-blasting” company, to transmit approximately 10,000 faxes advertising a pipe-thread sealing tape product.

American Copper & Brass, a Michigan-based equipment wholesaler with no preexisting business relationship with Lake City, received the faxed advertisement on a fax machine, and sued Lake City for violating the TCPA.  The Western District of Michigan rejected Lake City’s arguments that it should not be held liable for B2B’s actions and that American Copper had failed to offer evidence of the number of recipients who had printed the advertisements, and it certified a class of:

All persons who were successfully sent a facsimile on February 20, 2006, February 21, 2006 or February 22, 2006 from “Lake City Industrial Products, Inc.”; inquiring, “Sick And Tired of Thin, Low Quality Import Pipe Thread Sealing Tapes?”; stating “End the problems now with high quality, MADE IN U.S.A. 100% virgin ptfe pipe thread sealing tapes!”; and offering “Free! Private label on every roll for first time orders.”

On appeal, Lake City argued that the class definition encompasses “persons that may not have ever received, noticed or printed the fax but who are somehow associated with a number on the hard drive’s fax logs . . . [and] further includes persons that may not be (or who were) the owners of the machines or fax number [who] may or may not have actually received [the] fax,” and that such persons lack standing to assert TCPA claims.  The Sixth Circuit rejected that argument based on the plain language of the TCPA, and explained that recovery under the TCPA is not premised on ownership of a fax machine and that “unsolicited fax advertisements impose costs on all recipients, irrespective of ownership and the cost of paper and ink, because such advertisements waste the recipients’ time and impede the free flow of commerce.”

Lake City also argued that a fax might be “successfully sent” without being received by its intended recipient.  The Sixth Circuit rejected that argument as well based on American Copper’s un-rebutted evidence introduced at class certification that “a total of 10,627 successful transmissions of a complete fax were successfully sent and received by 10,627 unique fax numbers.”  American Copper’s expert had examined B2B’s records and counted only “error-free” transmissions before rendering an opinion.

Finally, apparently for the first time on appeal, Lake City also argued that the class was not objectively ascertainable.  The Sixth Circuit found that Lake City had forfeited that argument by failing to make it at class certification, but also noted that “the record in fact demonstrates that the fax numbers are objective data satisfying the ascertainability requirement.”

Amer. Copper & Brass, Inc. v. Lake City Industrial Prods., Inc., No. 13-2605 (6th Cir. July 9, 2014)