District Court (Oh.) Denies TCPA Class Cert. in Blast-Fax Case Because Defendant’s Call Records Were Insufficient to Identify the Putative Class and Individual Questions of Consent Predominated

In Sandusky Wellness Center, LLC, v. ASD Specialty Healthcare, Inc., 2016 WL 75535, at *2-4 (N.D.Ohio 2016), Judge Zouhary denied class cert in a TCPA blast-fax case.

Identifying fax recipients is typically accomplished by examining fax logs that confirm which faxes successfully transmitted and which failed. See e.g., Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684–85 (7th Cir. 2013) (affirming certification based on predominance where fax logs identify fax recipients and thus there was “no need for recipient-by-recipient adjudication”). That analysis is not possible here because Besse only retains its emails for up to eighteen months (Doc. 100-6 at 3–4). Any fax logs Besse received from WestFax at the time of the 2010 fax were gone by the time Sandusky initiated this lawsuit in 2013 (Besse Decl. at ¶ 8). Without the fax logs, there is no classwide method by which to identify the 13,159 class members who have no claim. This Court acknowledges Sandusky’s argument that Besse should not escape responsibility for its potential wrongdoing because of its lack of records. But the absence of the fax logs does not alleviate Sandusky’s burden of demonstrating that the proposed class meets the Rule 23 requirements. Even though Sandusky can identify the potential universe of fax recipients, class certification is improper because individualized issues predominate as to whom Besse “successfully sent” the Prolia fax. . . .For the same reasons, Sandusky has not established its class definition is administratively feasible. . . .The proposed class definition is also problematic because it focuses on individuals “who were successfully sent” the Prolia fax. However, as this Court addressed in its earlier Order (Doc. 90), the intended fax recipient is not apparent from the face of the document. As to the named Plaintiff, Besse argues it intended to send the Prolia fax to Dr. Juan Penhos, not Sandusky, but the fax did not specify to whom it was intended (Doc. 79 at 16; Besse Dep. (Doc. 79-2) at 30–32). Further complicating the analysis, the list of fax numbers included two entries for Penhos with two different fax numbers — one at Sandusky and one at his private office (Doc. 83-1). Based on that record, this Court found there is a genuine issue of fact whether the fax was part of a mass advertising “fax blast” intended for Sandusky, or a targeted advertisement directed to Penhos (Doc. 90 at 6). Under the class definition, Penhos or Sandusky, or both, may be class members. And this is not the only instance where the listed fax number may be associated with multiple physicians or entities (see, e.g., Besse Decl. at ¶¶ 17, 30–32, 59). Identifying the intended recipient of the Prolia fax and whether that recipient consented would require this Court to conduct an individualized inquiry into the unique circumstances of each fax transmission. See Sandusky Wellness Ctr. LLC v. Medtox Sci., Inc., 2014 WL 3846037, at *3–4 (D. Minn. 2014) (denying class certification). . . .The InfoUSA list included contact information of both prospective clients and “several thousand” current or former Besse customers, many of whom had consented to receive faxes (Besse Decl. at ¶ 5). Besse has presented evidence that some of the fax advertisements were solicited, but identifying those recipients who consented to receiving faxes is a case-by-case analysis (see Lee Dep. (Doc. 100-10) at 18–19). Besse customers consented through a variety of different forms, completed in unique ways at different times. Besse claims that determining which of the proposed class members consented to receiving faxes would require manually cross-checking 450,000 potential consent forms against the 53,502 potential class members (Besse Decl. at ¶¶ 9–11, 14–107). Certification is thus inappropriate because Sandusky has “failed to advance a viable theory of generalized proof to identify those persons, if any, to whom [Besse] may be liable under the TCPA.” Gene and Gene LLC v. BioPay, 541 F.3d 318, 327–29 (5th Cir. 2008) (denying class certification where issue of consent could not be established via class-wide proof); cf. Siding & Insulation Co. v. Combined Ins. Grp. Ltd., 2012 WL 1425093, at *3 (N.D. Ohio 2012) (finding common issues of consent predominated where the fax sender “produced no evidence that any individual consented to receive the fax advertisement and, therefore, is unable to realistically argue that individual issues relative to consent outweigh commonality”).