6th Cir. Affirms Denial of Class Cert. in TCPA Blast-Fax Case Due to Ascertainability Problems

To be sure, courts have been inconsistent in how they have accounted for difficulties in identifying class members, especially within the context of the TCPA. Some consider it when deciding whether common questions of law or fact predominate. See, e.g., Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685 (7th Cir. 2013) (concluding that fax logs listing the fax numbers of each individual who received the fax obviated the “need for recipient-by-recipient adjudication,” and consequently, “the district court did not err in concluding that the questions of law or fact common to class members predominate over any questions affecting only individual members”) (internal quotation marks omitted).  Other courts frame it as a question of ascertainability. In order to meet Rule 23(b)(3)’s implied ascertainability requirement, a “class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.” Young, 693 F.3d at 537–38 (citing 5 James W. Moore et al., Moore’s Federal Practice § 23.21[1] (Matthew Bender 3d ed. 1997)). In the context of the TCPA, where fax logs have existed listing each successful recipient by fax number, our circuit has concluded that such a “record in fact demonstrates that the fax numbers are objective data satisfying the ascertainability requirement.” See Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 545 (6th Cir. 2014). Recently, the Second Circuit affirmed a district court’s denial of class certification on ascertainablity grounds under similar circumstances as present here. See Leyse v. Lifetime Entm’t Servs., Inc., No. 16-1133-cv, 2017 WL 659894 (2d Cir. Feb. 15, 2017). . . .And still other courts take a dual-approach, considering both predominance and ascertainability in tandem, much like the district court did here. See Medtox, 821 F.3d at 997–98 (finding that “whether a class member received the unsolicited fax” was a common question of fact that predominated when fax logs existed to identify recipients and that “fax logs showing the numbers that received each fax are objective criteria that make the recipient [class member] clearly ascertainable”).  Outside the context of the TCPA, two sister circuits have cautioned against an aggressive take on ascertainability, and have instead concluded, as Sandusky advocates, that class member identity concerns should be taken into account under Rule 23(b)(3) superiority. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015) (declining to reverse district court decision finding that a putative class of all purchasers of Instaflex within the relevant time period was clearly ascertainable despite the fact that affidavits alone might be the only means of identifying class members); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 (9th Cir. 2017) (rejecting ConAgra’s argument that there was no administratively feasible way of identifying putative class of Wesson Oil purchasers who were unlikely to have proof of purchase, and affirming certification of class because it was defined by objective criteria). Moreover, Mullins and Briseno suggest that utilizing affidavits alone as a mechanism to identify class members need not be a barrier to class certification under Rule 23’s implied ascertainability requirement. Mullins, 795 F.3d at 658, 672; Briseno, 844 F.3d at 1132; cf. Carrera v. Bayer Corp., 727 F.3d 300, 309–12 (3d Cir. 2013) (suggesting that use of affidavits is insufficient to satisfy the ascertainability requirement).  As this synopsis indicates, courts have categorized class member identity concerns differently within Rule 23’s framework. And the district court’s decision to account for it under ascertainability and predominance does find some support in the case law. However, we see no need to add our own opinion to this debate. For even assuming Sandusky is correct that difficulties in identifying class members should be considered as part of Rule 23(b)(3) superiority, the facts of this case present a situation where the class device is not “superior to other available methods” due to “the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3). Thus, we may affirm the district court on this alternative ground. Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 786 (6th Cir. 2016).   As a general matter, the district court does not know who received the Prolia fax. The fax logs no longer exist. Yet we know that 13,159 individuals on the Prolia List do not have valid claims against Besse. Sandusky has proposed no method for weeding out these individuals, who comprise approximately 25% of all intended recipients. The district court recognized that its own proffered solution—having class members submit individual affidavits testifying to receipt of the Prolia fax—was not feasible, concluding that the reliability of an individual’s recollection of having received a seven-year-old, single-page fax would be dubious at best. Furthermore, it is possible that all 53,502 intended recipients might submit affidavits claiming receipt of the Prolia fax and their entitlement to $500 in damages. Finding out which quarter of these individuals were being untruthful would require scrutinizing each affidavit and would undoubtedly be a difficult undertaking. In fact, it may not even be possible, in which case the district court would be tasked with fashioning some type of reduced equitable relief for all recipients. Practical concerns such as these highlight the difficulties the district court would have in managing Sandusky’s proposed class and further underscore the inappropriateness of class certification.  To our knowledge, no circuit court has ever mandated certification of a TCPA class where fax logs did not exist, and we decline to be the first. Sandusky cites exclusively out-of-circuit district court cases as examples of when TCPA classes have been certified despite missing fax logs. See Appellant Br. at 13–14. But while the district courts in those cases may have determined, given the specific facts presented, that classwide treatment was manageable, the district court’s opposite conclusion in this case was not an abuse of discretion. The two non-TCPA circuit court cases relied on by Sandusky—Mullins and Briseno—suggest that a district court may rely on affidavits to identify class members, but they do not mandate that it must do so. Notably, both of those cases affirmed lower court decisions certifying a class, where the district court had concluded that it was manageable to rely on affidavits to identify class members. Here, in contrast, the district court came to the opposite conclusion. We think this difference in procedural posture is important given the “substantial discretion” we afford district courts in choosing whether to certify a class and our subsequent “very limited” review of that decision. Rikos, 799 F.3d at 504; Young, 693 F.3d at 536. Finally, even Mullins contemplates that “[a] plaintiff’s failure to address the district court’s concerns adequately [with regards to difficult manageability problems] may well cause the plaintiff to flunk the superiority requirement of Rule 23(b)(3).” See Mullins, 795 F.3d at 672. That is exactly the scenario we have here.   While class certification may be “normal” under the TCPA, see Appellant Br. at 8 (quoting Turza, 728 F.3d at 683), that does not mean it is automatic. While there may be several benefits to affording TCPA cases class treatment—for example, as a way to hold businesses accountable when smaller recovery values provide fewer incentives for solo claims—those benefits do not always outweigh the difficulties of managing a proposed class. Sandusky waited three years after receipt of the one-page Prolia fax to sue Besse for failing to include a properly worded opt-out notice. It did so when fax logs no longer existed to identify each recipient and without a proposed alternative for identifying class members. Perhaps if Sandusky had brought suit earlier, fax logs would have existed, and their absence would not pose an independent barrier to class certification. Or, Sandusky could have filed an individual claim against Besse and presented a copy of the Prolia fax as evidence of receipt. Instead, Sandusky did neither of these things. By choosing to file a class action when it did, Sandusky shouldered the burden of proving that its proposed class satisfied Rule 23. It simply did not meet that burden here. In sum, we conclude that the difficulty of identifying class members in the absence of fax logs was a separate and valid concern recognized by the district court that precluded class certification.