Blast Fax Cases Now Harder to Certify

by Foley & Lardner LLP

Blast fax cases filed under the Telephone Consumer Protection Act just became harder to certify in Minnesota. On August 5, 2014 U.S. District Court Judge David S. Doty, in the case Sandusky Wellness Center LLC v. Medtox Scientific, denied Sandusky’s motion for class certification because the members of the proposed class were not objectively ascertainable.

Here are the facts. On February 21, 2012 Medtox sent an unsolicited fax advertisement to Sandusky. Medtox is a toxicology laboratory that sells lead screening products. Because lead is particularly harmful to children, Medtox focuses its advertising on pediatricians, family practitioners and health organizations that work with children. It gathers names and numbers of potential customers from health insurance provider directories. Sandusky is a chiropractic clinic.

The February 2012 fax Medtox sent to Sandusky was intended for a family practitioner named Dr. Bruce Montgomery. Dr. Montgomery used Sandusky’s offices once a week to see patients. He had provided Sandusky’s fax number for placement in a health insurance provider directory. Neither Sandusky nor Dr. Montgomery gave express permission to Medtox to fax advertisements. The fax cover sheet did not indicate an intended recipient.

When Sandusky received the fax intended for Dr. Montgomery, it sent it on to its lawyer. Dr. Montgomery never received it. The TCPA prohibits any person from sending unsolicited fax advertisements and requires that all fax advertisements — solicited or not — contain an opt out notice. Relying on these prohibitions, Sandusky filed a class action lawsuit where it sought to represent:

“All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages regarding lead testing services by or on behalf of Medtox, and (3) which did not display a proper opt-out notice.

The court denied class certification finding that the class was not objectively ascertainable. The class definition was too broad as both Dr. Montgomery and Sandusky could be class members. The flaw was it centered on those people who “were sent” faxes. The court ruled:

“In order to determine to whom each fax was sent—and thus, who was injured—the parties and the court would need to delve into the unique circumstances of each fax transmission. The answer may come more readily in some instances—for example if a person to whom the fax was sent is the sole owner and user of the fax machine—but that information is not ascertainable absent of individual inquiry.”

The parties agreed Sandusky owned the fax. However, the court rejected the idea that the class definition could be modified to include only owners, because the fax numbers themselves do not readily identify the class members. The court ruled that knowing all the fax numbers was just a starting point of the analysis. Once the relevant numbers were identified, the parties would have to explore who owned, operated and used the fax machine associated with each number. It was not feasible to undertake such an individualized inquiry on a class basis. Thus, the class definition was untenable because it would take “individualized discovery to determine the threshold issue of who was ‘sent’ each of the thousands of faxes at issue.”

While the court did not expressly say this, it seemed to recognize that only the owner of the fax machine has standing to sue. Simply knowing the telephone number dialed does not answer the ownership question. The Sandusky decision could effectively terminate class litigation over fax advertising. Stay tuned.

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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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